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+supreme court of canada police officers can't reveal information about confidential informers to anyone, including lawyers defending them for crimes, the supreme court has confirmed. the same rule applies to police as to everyone else: information can only be revealed if there is a risk that an innocent person will go to jail. in 2011, four british columbia rcmp officers were charged with breach of trust, fraud, and obstruction of justice relating to their conduct with a protected witness who was under their care in the 'surrey six' gang murder case. when the officers were charged with the crimes, they were told they couldn't tell anyone anything that might expose confidential informers. this included their lawyers. the officers said they wanted to talk about confidential informers with their lawyers to see if it would help defend themselves against the charges. the crown pointed out that no confidential informers were involved in the acts the officers were charged with (the protected witness was not one). it said the information wasn't relevant to the officers' defence, and they shouldn't be allowed to share it. this case involved a legal concept known as 'privilege.' privilege protects certain kinds of information from being revealed. 'solicitor-client privilege' is a well-known type, and protects communications between a client and a lawyer. but there are other kinds. this case dealt with 'informer privilege,' which protects the identities of confidential informers who help police. because it is in the public interest to encourage people to come forward to help police solve crimes, and because informers may be harmed if their identities are revealed, the protection is strong. courts have said there is only one exception, known as 'innocence at stake.' this is when there is a real risk that an innocent person may go to jail, and s/he can't raise reasonable doubt about his or her guilt any other way. the trial judge ruled for the officers. appeals to the court of appeal on technical issues did not change the result. justice rosalie silberman abella, writing for a unanimous supreme court, ruled for the crown. she stressed the importance of informer privilege, noting the real danger to people and the justice system itself if sensitive information were revealed. she said police officers have special obligations because of the positions of trust that they hold. that includes protecting the identities of confidential informers. the only reason the accused in this case had information about confidential informers at all was because of their work as police officers. other accused persons would never have the benefit of such information, so preventing the officers from sharing it did not disadvantage them. police officers are entitled to the full protection of the law, and to be treated fairly, but they are not entitled to be treated better than other accused. justice abella said that, like other accused, police officers should not be allowed to share informer-privileged information with their lawyers unless they show they might be wrongfully convicted if they don't. the officers in this case never argued that they would be; they only said the information might be relevant to their defence. this decision confirmed that the only time an exception will be made to informer privilege is when there is a danger someone will be wrongfully convicted of a crime. it made clear that solicitor-client privilege doesn't destroy informer privilege, and doesn't allow police officers to identify confidential informers to their lawyers.
+supreme court of canada people delivering mail have a right to safe workplaces, but that doesn't mean mail routes have to be inspected every year, the supreme court has ruled. canada post delivers mail across canada. the canadian union of postal workers represents its workers. this includes letter carriers, the people who deliver the mail. the federal government is responsible for mail under the constitution. this means canada post has to follow federal labour laws. one of these laws is the canada labour code. part of that law deals with workplace health and safety. its main purpose is to prevent accidents and injuries at work. the code said there had to be a committee to find and fix dangers to workers' health and safety. the committee had both worker and employer members. in 2012, the union filed a complaint about a mail depot in burlington, ontario. it said the committee there wasn't following the code. it said the committee was supposed to inspect each part of the workplace at least once a year. the union said the workplace included all routes mail was carried on and all places it was delivered. while the complaint was only about burlington, it could have had effects across canada. canada post delivered mail to almost 9 million places along 72 million kilometres of routes. a health and safety officer looked into the complaint. she agreed with the union. but the appeals officer at the occupational health and safety tribunal agreed with canada post. he said the committee only had to inspect parts of the workplace canada post controlled. this meant the depot itself. it didn't include mail routes or places mail got delivered. the union asked for 'judicial review.' (judicial review is where a court looks at a decision by someone acting on behalf of the government.) the federal court let the appeals officer's decision stand. but the federal court of appeal said the appeals officer made mistakes. it said the health and safety officer's decision should stand. this meant canada post had to inspect all the routes and places mail was delivered. the majority of judges at the supreme court said the appeals officer's decision should stand. this meant the committee didn't have to inspect the mail routes and places where mail was dropped off every year. the majority said it was open to the appeals officer to make the decision he did. he had looked very closely at the wording, purpose, and context of the specific section of the code dealing with inspections. he understood what the practical effects of his decision would be. he decided that some parts of the code applied in general, to all places where workers had to be during the workday. but some parts applied only to places that the employer controlled. the section about inspections was one of these. that meant only places that canada post actually controlled had to be inspected every year. under the code, canada post had to do what it could, in general, to keep workers safe. workers could report issues on routes or at places they went to deliver mail. laws like the code should usually be interpreted broadly to help workers. but broad interpretations only help if they make sense. the purpose of the inspections was to find and fix dangers. canada post didn't control the mail routes or most of the places mail was delivered. many of them were on private property. if there was a danger, canada post didn't have the power to fix or change it. inspecting the routes and delivery places each year wouldn't make workers safer. courts have a role in looking at administrative decisions like the appeals officer's. this is called 'judicial review'. when doing judicial review, courts use a 'standard of review' to decide if the original decision should stand. between the time of the hearing and the decision for this case, the supreme court changed how courts look at administrative decisions. in this case, the court applied the same standard of review ('reasonableness') under the new rules as the lower courts applied under the old ones.
+supreme court of canada the supreme court rules that when someone is required by their partner to wear a condom during sex but they do not, they could be guilty of sexual assault. in march 2017, ross kirkpatrick and a woman met online and then in person in british columbia. the woman agreed to have sex with mr. kirkpatrick, but only if he wore a condom. they had sexual intercourse twice one night. mr. kirkpatrick wore a condom the first time. the second time, mr. kirkpatrick did not wear a condom, which she only realized after intercourse ended. based on these events, mr. kirkpatrick was charged with sexual assault. section 273.1(1) of the criminal code defines consent as a person's voluntary agreement to 'engage in the sexual activity in question'. at trial, the complainant testified that she had not consented to the sexual activity in question in this case, intercourse without a condom. when the crown finished presenting its case, mr. kirkpatrick asked the judge to dismiss the charge against him due to lack of evidence. he claimed the crown did not prove the absence of consent, because the complainant consented to the sexual intercourse, regardless of condom use. specifically, mr. kirkpatrick said the judge should apply the supreme court's 2014 ruling in r v hutchinson, which established a test for analyzing consent. that case also involved a complainant who said she consented to having sex but only if the accused wore a condom. the accused pierced holes in the condom without the complainant knowing. the supreme court decided that the complainant consented to the 'sexual activity in question' in that case because she agreed to sexual intercourse. however, the supreme court found that the accused obtained the complainant's consent by fraud, contrary to section 265(3)(c) of the criminal code, since the accused had tampered with the condom. in the present case, mr. kirkpatrick said the complainant agreed to have sexual intercourse, like in hutchinson, but he said there was no evidence of fraud, unlike in hutchinson. the judge dismissed the sexual assault charge against mr. kirkpatrick due to lack of evidence. the judge applied hutchinson and found that because the complainant agreed to have sex with mr. kirkpatrick, she consented to 'the sexual activity in question' under section 273.1(1), although no condom was worn. and, the judge also determined that there was no evidence that mr. kirkpatrick's failure to wear a condom was fraud under section 265(3)(c) the crown then appealed to british columbia's court of appeal. the court of appeal ordered a new trial, finding that the first judge should not have dismissed the sexual assault charge based on a lack of evidence. mr. kirkpatrick then appealed to the supreme court of canada. the supreme court has dismissed mr. kirkpatrick's appeal and has confirmed a new trial is needed. when condom use is a condition for sexual intercourse, it becomes part of the sexual activity to which the person consented. writing for a majority of the judges of the supreme court, justice sheilah l martin said that when condom use is a condition for sexual intercourse, 'there is no agreement to the physical act of intercourse without a condom'. the condom is part of the 'sexual activity in question' to which a person consented under section 273.1(1) of the criminal code. 'since only yes means yes and no means no, it cannot be that ‘no, not without a condom' means ‘yes, without a condom'', justice martin wrote. there is therefore no need to decide whether the failure to wear a condom in this particular case was fraud. and hutchinson does not apply to the present case, but it still applies in cases involving condom sabotage and fraud. there was evidence of the complainant's lack of consent to sex without a condom. the complainant provided evidence that she would not have had sex with mr. kirkpatrick without a condom. accordingly, there was some evidence the complainant did not consent to the sexual activity in question. the trial judge made an error in concluding there was no evidence and in dismissing the sexual assault charge. a new trial is therefore required.
+supreme court of canada a quebec court doesn't always have to put its proceedings on hold when a foreign court is hearing the same dispute, the supreme court has ruled. in today's world, life crosses borders. but laws and courts are local. 'private international law' is the branch of law that deals with this. for example, a court may decide not to hear a case if another country has a stronger connection to it. a court in one country may even apply the laws of another country. two people met in france and got married in belgium. they later moved to quebec with their children. in 2014, the husband filed for divorce in belgium. three days later, the wife filed for divorce in quebec. the husband later said he was taking back all the gifts he ever gave the wife. belgian law said he could do this. the gifts totalled over $33 million and included half of the family's home in quebec. the husband asked the quebec court to 'stay' the wife's application (that is, to put it on hold). this was because courts in two countries would be deciding the same dispute, and could make contradictory decisions. this is one of the problems private international law tries to avoid. the wife also asked the belgian court to put the husband's case on hold. she said the belgian law letting him take back the gifts was unconstitutional. there are three conditions to meet before quebec courts can consider putting proceedings on hold to wait for a decision in another country. first, someone must have asked for a court hearing in the other country first. second, cases in both countries have to deal with the same legal dispute. third, it has to be possible for the (eventual) foreign decision to be recognized in quebec. if one of these conditions isn't met, the quebec court can't order a stay. even if all three conditions are met, the quebec court still has the 'discretion' not to order a stay. discretion is a judge's freedom to decide certain issues. but there are limits to that freedom. the application judge in quebec said the third condition wasn't met. she said quebec courts wouldn't recognize a belgian decision taking back the gifts. this was because the law unfairly discriminated against spouses. that meant the case had to go forward in quebec. even if all the conditions were met, the application judge said she still wouldn't have used her discretion to put the quebec proceedings on hold. the court of appeal said all the conditions were met. it said the third condition was met if it was possible that the belgian decision might be recognized in quebec. it said the proceedings on divorce and division of property had to be put on hold in quebec. (other issues related to the children and support could go ahead.) it also said that the application judge made serious mistakes in using her discretion. in the meantime, the belgian courts said they should decide most of the issues. the supreme court majority agreed with the court of appeal that the husband met all three conditions for a possible stay. it said even though it wasn't clear if the belgian decision would be recognized in quebec, the husband had done enough to show it might be. but the majority said the application judge's decision to hear the case should still stand. even if the three conditions are met, quebec courts shouldn't automatically put their proceedings on hold. a judge can still decide it's appropriate to hear a dispute in quebec. this could be, for example, if quebec was closely connected to the dispute. in this case, the family home (worth over six million dollars) was in quebec. a quebec decision would have some force even if belgium didn't recognize it. the majority added even if it might not agree with the application judge's whole analysis, the court of appeal shouldn't have interfered. for issues where discretion can be used, the first judge to hear the facts is best-placed to decide. higher courts can only interfere if the first judge made a serious legal or factual mistake. it can't just be a difference of opinion. the majority said the application judge didn't make such a mistake in this case. the supreme court previously dealt with private international law in barer v knight brothers llc and haaretz.com v goldhar.
+supreme court of canada breathalyzer maintenance records don't have to be disclosed unless an accused person can show they are likely relevant to his or her defence, the supreme court has ruled. mr. gubbins and mr. vallentgoed were charged with having blood alcohol 'over 80' in separate incidents. as part of their defences, they asked for copies of the maintenance records for the breathalyzer devices used to test their blood alcohol levels. mr. vallentgoed received some records showing that the breathalyzer used to test him had been sent for repair the day after he was charged, and twice more in the previous four months. his lawyer asked for more information about the repair work. the crown (the prosecution) refused. it said the repair records belonged to third parties, and that they weren't relevant anyway. the summary conviction judge agreed with the crown, and convicted mr. vallentgoed of driving with blood alcohol 'over 80.' the summary conviction appeal judge ruled for mr. vallentgoed, saying the case should go back to trial after the crown gave him the records. mr. gubbins also asked for maintenance records for the breathalyzer used to test him. the crown said the records were held by a third party (the contractor who maintained the device). an expert witness testified that maintenance records weren't relevant to whether a particular test was accurate, so they weren't relevant to mr. gubbins' defence. the trial judge ruled for mr. gubbins and ordered the trial stopped until the crown gave mr. gubbins the records. the summary conviction appeal judge agreed. mr. vallentgoed's and mr. gubbins' appeals were heard together before the court of appeal because they dealt with the same issue: what records an accused person has a right to when defending a criminal charge. the court of appeal agreed with the crown. it restored mr. vallentgoed's conviction and sent mr. gubbins' case back for trial. it said the breathalyzer maintenance records were 'third-party' records and didn't have to be disclosed. this case turned on the difference between 'first-party' and 'third-party' records in a criminal case. when a person is charged with a crime, the crown has to share information related to the person's defence. there are some exceptions, for example if the information is 'privileged' or protected by law. some police records will be considered 'first-party' records (like anything created or gathered by police during the investigation). first-party records have to be disclosed when the accused person asks, unless the crown can show they are privileged or obviously not relevant to the case. other police records will be considered 'third-party' records (like documents related to police administration or operations). documents that aren't part of the investigation and do not belong to the police, such as medical records belonging to a hospital, are also considered third-party records. third-party records will only be disclosed if the accused person can show they are likely relevant to the case. the problem in these cases was that some courts had said breathalyzer maintenance records were first-party records, while others had said they were third-party records. the law was not clear. the majority at the supreme court said breathalyzer maintenance records were third-party records. they didn't need to be disclosed unless the accused person could show they were likely relevant to his or her defence. the majority looked at the relevance of the maintenance records and who controlled them. while they would be relevant to whether a breathalyzer device was maintained properly, they wouldn't be relevant to whether it was working on a given day. (breathalyzers do self-tests each time they are used; those records were relevant and had already been shared.) the records weren't held by the crown because they belonged to the rcmp and other third parties, such as contractors. they were not part of any rcmp investigation file since they were just general operational records. the majority upheld mr. vallentgoed's conviction and sent mr. gubbins' case for a new trial. in this case, the supreme court decided how much information about breathalyzer maintenance records prosecutors have to share with someone accused of an 'over 80' offence. this settled a disagreement among lower courts about how these records should be treated. r v awashish, released on the same day, also dealt with breathalyzer records and an 'over 80' driving offence. it was originally appealed for different reasons.
+supreme court of canada a lawyer who repeatedly recommended that his clients invest money in funds promoted by his friend's firm was responsible for the clients' losses when it turned out to be a ponzi scheme, the supreme court has ruled. people hire lawyers to help them make important decisions. they have to be able to trust them. that means trusting they are capable, careful, and will act in the client\'s interests, not anyone else\'s. to help guarantee this trust, lawyers have certain ethical and professional duties. in quebec, two of these are the 'duty to advise' and the 'duty of loyalty.' the duty to advise means several things. it means the lawyer has to tell the client all the relevant facts. they have to explain the possible consequences of an action. and they have to recommend what the client should do. how far this duty goes depends on a few things. these include the client's experience and knowledge, the reason the lawyer was hired, and what expertise the lawyer says they have. the duty of loyalty means the lawyer has to be loyal to the client. lawyers can't put themselves in situations where things they want might go against things their clients want. mr. salomon was a lawyer. he had been the lawyer for some of the thompsons' businesses for many years. in 2003, ms. matte-thompson asked him for advice. mr. thompson had died and left her money in trust. she wanted to live off the interest only and save the rest for the children. mr. salomon introduced ms. matte-thompson to his personal friend, mr. papadopoulos, and recommended the services of his firm, triglobal capital management. he said investing in one of the funds promoted by mr. papadopoulos's firm would help ms. matte-thompson achieve her goals. with mr. salomon's encouragement, ms. matte-thompson and the company she owned invested with triglobal and kept their investments there. over the years, they invested over $7.5 million in two funds. in 2006, ms. matte-thompson told mr. salomon she was worried about the investments. he reassured her and told her to keep investing. he also told mr. papadopoulos to reassure her. in 2007, mr. papadopoulos and his business partner disappeared with almost $100 million. this included over $5 million invested by ms. matte-thompson and her company. later, ms. matte-thompson found out mr. papadopoulos had paid mr. salomon almost $40,000 during the years he advised her and her company. in 2008, ms. matte-thompson and her company sued mr. salomon and his law firm. she said mr. salomon had failed in his duty to advise. this was because he recommended, endorsed, and encouraged inappropriate investments. she also said he disregarded his duty of loyalty. this was because he put himself in a conflict of interest, which caused him to ignore the risks. the trial judge said mr. papadopoulos and his partner were responsible for the losses. but she said mr. salomon was not. the court of appeal said the trial judge made important mistakes. it said mr. salomon was responsible, and reversed the trial judge's decision. the majority at the supreme court said the court of appeal was right to intervene. the trial judge failed to look at mr. salomon's actions as a whole from 2003 to 2007. it agreed with the court of appeal that mr. salomon failed in his duty to advise ms. matte-thompson and her company. this was because he encouraged ms. matte-thompson to invest and keep her money (and the company's money) in the funds over many years, even though they didn't meet her goals. he never looked into the funds he was recommending, but kept telling her the investments were safe. the majority agreed that ms. matte-thompson would have never invested in triglobal funds if mr. salomon hadn't failed in his duty to advise. it also agreed that mr. salomon disregarded his duty of loyalty. his friendship and investments with mr. papadopoulos put him in a conflict of interest. he even told mr. papadopoulos about ms. matte-thompson's private fears and concerns. mr. papadopoulos also paid mr. salomon while he was advising ms. matte-thompson and her company. it was wrong for him to advise them in this situation. this case was about what lawyers are responsible for when they go beyond just referring clients to another professional. the decision doesn't mean lawyers take on more risk recommending someone now than they did before. lawyers can refer their clients to others. they just have to follow their professional and ethical duties when they do so.
+supreme court of canada the city of montreal had to pay a company for services it provided even though municipal contract rules weren't followed, the supreme court has said. the city of montreal was planning a big event in may 2007 to launch its transportation plan. less than a month before the event, city officials realized they needed help. they contacted octane, a public relations and communications firm. mr. th riault, who worked in the mayor's office, asked octane to do some work. octane got another company, pgb, to help. octane sent the city an estimate for about $83,000 for the work pgb would do. the event was a success. octane paid pgb the $83,000. octane sent invoices to the city for its services. the city paid three of them, but refused to pay the one for pgb's work. it said there was no contract between the city and octane, and octane made the contract with pgb on its own. in may 2010, octane sued the city to get the $83,000. on top of there being no contract, the city said because the services were for more than $25,000, by law it had to invite other companies to bid. because rules were broken, it said the contract wasn't allowed and it didn't have to pay. octane added mr. th riault to the lawsuit, in the hope that he might be ordered to pay if the city wasn't. the trial judge said there was a contract between octane and the city. but he said rules were broken. this meant the contract had to be annulled (cancelled and treated like it never existed). annulling the contract meant octane should get 'restitution of prestations' (the last word pronounced 'press-tay-shuns'). 'restitution' means giving something back when a person has gained something they shouldn't have from someone else. a 'prestation' is a payment, either in money or services. so 'restitution of prestations' means giving back a payment that shouldn't have been made. it is meant to return everyone to their original positions. since the city couldn't return the exact services octane provided, it had to pay their fair value. the trial judge said only the city had to pay, not mr. th riault. the court of appeal agreed. it said that since the contract had to be annulled, the parties had to be put back in their original positions. the majority added that even if no contract ever existed, this could still be done under the rules of 'receipt of a payment not due.' under these rules, a court can make someone give back a payment if it wasn't owed and was either made by mistake or to prevent something bad from happening. it is another way to get restitution of prestations. the majority at the supreme court said the city had to pay octane the $83,000 based on receipt of a payment not due. a major question was whether the rules on restitution of prestations applied to cities and towns. the city argued that special rules applied to municipal governments, to protect the public interest (and public money). all three levels of court said restitution of prestations applied to cities and towns. the supreme court majority said the public interest was protected. this was because courts could decide not to order restitution of prestations (or to order a different amount) if someone would get an advantage that they shouldn't. the majority said the trial judge made a legal mistake in deciding there was a contract. since the city didn't follow the proper process to agree to a deal, no contract ever existed under the law. because no contract existed, it couldn't be annulled. that meant restitution couldn't be ordered on the basis of a null (annulled) contract. but restitution can be based on other things. the majority agreed that it could be based on the city receiving a payment that wasn't due. the 'payment' was the events services octane provided through pgb. octane provided the services because it believed it had to. it thought (mistakenly) it had a contract with the city. that meant it should get an equal value for its services back. the majority didn't need to decide whether mr. th riault should pay because it said the city had to. but it said officials like him might have to pay in some situations. this case was decided based on specific rules of quebec's civil code.the supreme court recently looked at 'receipt of a payment not due,' in a different context, in threlfall v carleton university.
+supreme court of canada the supreme court upholds a fine of more than $9 million for a quebec maple syrup thief. the robbery was discovered in july 2012 when the f d ration des producteurs ac ricoles du qu bec (federation) did a routine inventory check at its warehouse in saint-louis-de-blandford and found barrels containing water instead of maple syrup. the federation controls the production of maple syrup in quebec. the quebec provincial police arrested 16 people, including mr. richard vallières. mr. vallières was found guilty of fraud, trafficking and theft. the stolen syrup was worth over $18 million. but during his trial in quebec superior court, he said he sold the syrup for $10 million and made a personal profit of around $1 million. the judge sentenced mr. vallières to eight years in prison and fined him over $9 million. the judge ordered this fine based on section 462.37(3) of the criminal code, which says a fine must be equal to the value of the stolen property when that property cannot be returned to its owner. this is called a 'fine in lieu'. mr. vallières appealed to the court of appeal of quebec. it reduced the fine to around $1 million, which was mr. vallières' profit. the crown then appealed to the supreme court of canada, arguing the court of appeal should not have reduced the fine. the supreme court has sided with the crown. a court cannot limit the amount of a fine to the profit made by an offender. writing for a unanimous court, chief justice wagner said the wording of section 462.37(3) of the criminal code is clear: mr. vallières must pay a fine equal to the value of the stolen syrup. this amounted to more than $9 million (in other words, $10 million for which he sold the syrup minus the amount he owed to the federation under a separate court order). mr. vallières has 10 years to pay this fine or else he must serve six years in prison. given the wording of section 462.37(3), a court does not have the discretion (power) to limit a fine to the profit made. so, the court of appeal was wrong in this case to reduce mr. vallières' fine to $1 million. the chief justice explained that parliament adopted section 462.37(3) for two reasons: not allowing an offender to profit from their crime and discouraging them from repeating the offence. this provision is severe because parliament wanted to send a clear message that 'crime does not pay'. in cases where more than one person had possession or control of the stolen property, a court can divide the value of that property among them in order to avoid the owner getting more money in return than they should. an offender must ask the court to divide the amount, and the court must be able to do so based on the evidence. in this case, the chief justice said mr. vallières had not proven at trial, or even on appeal, that the $10 million should be divided between him and the other thieves. as a result, the trial judge had no choice but to order him to pay the full amount.
+supreme court of canada a rule preventing citizens from voting in federal elections if they've been living outside canada for more than five years is unconstitutional, the supreme court has ruled. the canada elections act sets out the rules for federal elections in canada. it says who can vote and how elections are held, while making sure the election process is fair. the act says that any citizen age 18 or older can vote if they normally live in canada. one of the rules found in the act was challenged in this case. it said that citizens who had been living abroad for less than five years, and who intended to return to canada, could also vote in federal elections. citizens who had been living abroad longer than five years generally couldn't vote. (there were some exceptions, including for members of the military and government employees posted in other countries.) over a million canadian citizens living abroad hadn't been allowed to vote because of the rule. many had strong employment, family, and social ties to canada. some received pensions from or paid taxes to canada. many couldn't vote anywhere else in the world. two canadian citizens, dr. frank and mr. duong, were not allowed to vote in the canadian federal election in 2011. this was because they had been living outside of canada for more than five years. both had strong ties to canada and hoped to return if they could find suitable jobs. both mr. duong and dr. frank challenged the rule that prevented them from voting. they said it breached section 3 of the canadian charter of rights and freedoms because it denied them their right to vote, and so was unconstitutional. section 3 says (in part) that every citizen of canada has the right to vote in a federal election. the attorney general, on behalf of the federal government, agreed that the rule breached section 3. however, breaches of charter rights can be allowed in some situations. section 1 of the charter says that certain rights can be limited, but only if the limit is reasonable and can be justified in a free and democratic society. the attorney general argued that the rule was reasonable and justified under section 1. the judge who first heard the case said that the rule limiting the right to vote wasn't justified. the court of appeal disagreed and said the rule was constitutional. the majority at the supreme court said the rule breached section 3 and wasn't justified by section 1, so it struck the rule down. it said canadian citizens should be allowed to vote in federal elections, even if they have been living abroad for longer than five years. the majority noted that section 3 doesn't say anything about residence. in our system, residence helps determine where you vote, but not if you can vote. when deciding whether a law that breaches the charter is justified under section 1, courts first look at whether the law has a 'pressing and substantial objective' (an important purpose). if it does, they then look at whether it is 'proportionate' (that is, whether it balances the law's purpose with how it is achieved). in this case, the majority said that fairness to voters living in canada and fairness in elections were important goals. but it said the rule wasn't proportionate. for a rule to be proportionate, it has to meet three criteria. it must be rationally (or logically) connected to parliament's purpose. second, it has to limit the charter right as little as possible. third, it has to properly balance good and bad effects. in this case, there was no evidence anyone ever complained about non-resident voting, so the rule didn't seem to be rationally connected to the goal of fair elections. but the majority didn't need to decide this specifically, because the rule didn't meet the other two criteria. it harmed citizens' rights more than necessary because it was so broad it denied people with strong ties to canada (despite long absences) their right to vote. this didn't support the purpose of electoral fairness. finally, the majority said the rule's bad effects outweighed the good ones. this decision confirms that the right to vote is a basic and important democratic right, not a mere privilege. that means parliament can't limit it easily. the parts of the canada elections act that limit the voting rights of non-resident citizens are no longer in force.
+supreme court of canada internet service providers (isps) can charge copyright holders for some steps taken to identify customers suspected of illegal downloading, the supreme court has ruled. but they can't charge for things that they already have to do for free under the copyright act. online copyright infringement (illegal downloading of movies and music) has become common in canada. until 2015, no legislation specifically dealt with the problem. but a copyright owner could find out the identity of a downloader by getting a court order for the isp to reveal it. to compensate isps for their time and effort, and to prevent them from being overwhelmed with requests, isps could charge a reasonable amount of money for the service. all of this fell under common law rules (rules created over time by courts). after consulting with both copyright owners and consumers, the federal government updated the copyright act. the act's 'notice-and-notice regime' came into force in 2015. it was meant to work together with the existing common law rules. both common law (made by courts) and statutory law (made by parliament) are equally valid. but parliament can change the common law by passing a statute (like the act), if it wants to. where statutory law (like the act) doesn't cover something, the common law can fill in the blanks. one of the goals of the notice-and-notice regime is to discourage infringement. it does this by letting customers know when their accounts have been used to illegally download copyrighted content. under the regime, a copyright owner first has to tell an isp that it thinks one of the isp's customers has shared content illegally. normally, the copyright owner doesn't know the customer's real identity. it only knows the internet protocol (ip) address used to download the files. only the isp can connect the ip address to a specific customer. the isp must figure out who was using the ip address at the time of the infringement. it must then pass on a notice to the customer, usually by an automatic message to the email address linked to the account. it then confirms (provides notice) to the copyright owner that this has been done. under the act, the isp can't charge the copyright owner for doing this. if a copyright owner wants to know a customer's identity after notice has been given, it still has to get a court order. the act says the isp has to keep records so it can link ip addresses to customers later. it also says the isp can't charge a fee for keeping these records. a group of film producers got together to fight illegal sharing of their films. they wanted to know the real-life identity of a rogers customer so that they could sue that person. they had the customer's ip address, and got a court order for rogers to give them the person's contact and personal information. the producers eventually planned to sue about 55,000 more customers, so this would be the first of many requests. rogers collected the information, but said the producers had to pay a fee for it. it argued that the notice-and-notice regime didn't say that isps had to share customers' real-life identities with copyright owners. that meant the old common law rules still applied when copyright owners asked for this information. the producers disagreed. they said disclosing customer identities was part of the regime created by the copyright act, and so rogers couldn't charge anything for the information. the federal court ruled for rogers, and said isps could be compensated for all steps taken to identify a customer to a copyright owner. but the federal court of appeal disagreed. it said the act said rogers had to keep the information that would identify customers anyway. it said rogers couldn't be compensated for steps it took that overlapped with things it already had to do under the act. justice russell brown, writing for the majority, said isps should be paid a reasonable amount to comply with court orders to reveal customer identities. but they shouldn't be paid to do things they already had to do under the notice-and-notice regime. justice brown said the regimerequired the isp to give notice to the customer and inform the copyright owner that it did so. he said this included a duty to make sure the information was accurate. that meant rogers could not charge a copyright owner to check the information to make sure it was correct. he noted that rogers followed an eight-step process to respond to court orders asking for customer identities. some of the steps had to be done anyway to comply with the act, and so he said rogers should not be paid for them. but others, like connecting the ip address to the person's real-life identity and sharing that with the copyright owner, were not covered by the act. rogers could therefore charge a fee for them. seven other judges agreed with justice brown. justice suzanne côté agreed that isps should be paid a reasonable amount to disclose customer identities as part of a court order. but she said rogers should be able to charge for all eight steps in this case. in her view, the steps were not about confirming that the records were accurate. they were about confirming the customer's real-life identity using those records. justice côté said that even if some steps were to confirm that the records were accurate, rogers should still be compensated. this was because people's contact information could have changed, or some notices may have been sent to the wrong people. making a mistake in identifying a customer could mean that the copyright owner might sue the wrong person. for that reason, justice côté said that rogers should be able to charge a reasonable amount for following a careful process. she said rogers and other isps could only charge for steps that were necessary, though. this case was about the interpretation of part of the copyright act that dealt with who should have to pay for an isp to reveal a customer's identity. the appeal was based on a pre-trial motion and the courts have not decided whether copyright infringement actually took place. both justice brown and justice côté agreed that the matter should go back to the motion judge to decide how much rogers should be paid.
+supreme court of canada the supreme court finds unconstitutional the section of the criminal code that permits consecutive parole ineligibility periods of 25 years in cases involving multiple first degree murders. on the evening of january 29, 2017, alexandre bissonnette entered the great mosque of qu bec armed with a semi-automatic rifle and a pistol and opened fire on the worshippers. he killed six people and seriously injured five others. at trial, he pled guilty to all charges against him, including six counts of first degree murder. the sentence for first degree murder in canada is imprisonment for life without the possibility of parole for 25 years. when someone is found guilty of multiple first degree murders, the same 25-year sentence applies to each murder. usually, offenders serve each of their sentences at the same time (concurrently), but at trial the crown prosecutor asked the judge to apply section 745.51 of the criminal code. this provision allows the periods without eligibility for parole for each murder conviction to be served back-to-back (consecutively). this would have meant the offender would serve six consecutive parole ineligibility periods of 25 years, for a total of 150 years. but counsel for the offender argued the provision is unconstitutional. the trial judge agreed and ordered the offender to serve five of the 25-year sentences concurrently, as well as 15 years for the sixth first degree murder to be served consecutively, for a total ineligibility period of 40 years. the offender appealed his sentence to quebec's court of appeal, which also found the provision unconstitutional, but ordered the offender to serve the six sentences concurrently, for a total ineligibility period of 25 years. the crown then appealed to the supreme court of canada. the supreme court has dismissed the appeal. section 745.51 of the criminal code violates section 12 of charter and is therefore unconstitutional. writing for a unanimous supreme court, chief justice richard wagner said section 745.51 of the criminal code violates section 12 of the canadian charter of rights and freedoms in a way that cannot be justified in a free and democratic society. section 12 of the charter guarantees the right not to be subjected to cruel and unusual punishment. its purpose is to protect human dignity and ensure respect for the inherent worth of each individual. in a case of multiple murders, section 745.51 of the criminal code allows a court to impose imprisonment on the offender without a possibility of parole for a period of 50, 75, 100 or even 150 years. this provision 'authorizes a court to order an offender to serve an ineligibility period that exceeds the life expectancy of any human being, a sentence so absurd that it would bring the administration of justice into disrepute', the chief justice wrote. a life sentence without a realistic possibility of parole presupposes the offender is beyond redemption and cannot be rehabilitated. this is degrading in nature and incompatible with human dignity. it amounts to cruel and unusual punishment. 'by depriving offenders in advance of any possibility of reintegration into society, section 745.51 shakes the very foundations of canadian criminal law', the chief justice said. in light of this conclusion, the chief justice declared section 745.51 invalid from the time it was enacted in 2011. as a result, the law that existed before that date continues to apply. this means the offender must serve a life sentence without eligibility for parole for a total of 25 years.
+supreme court of canada children who study in english or french should get the same quality of education, and eight bc communities should get french-language schools, the supreme court has ruled. the canadian charter of rights and freedoms is part of canada's constitution. it sets out the rights and freedoms of all canadians. some of those charter rights protect the use of canada's official languages, english and french. section 23 of the charter is about the right to go to school in english or french, even when it's not the main language of the province or territory. it says people whose first language is the minority language, or who went to primary school in that language, can send their kids to school in that language. but there have to be enough children in a community to justify it. section 23 doesn't say exactly how many children is enough for different levels of services. (for example, their own classrooms, their own schools, or their own school boards.) it also doesn't say how good the education in those schools has to be. the conseil scolaire francophone de la colombie-britannique is bc's french-language school board. the school board and some parents said bc hadn't done enough for french-language schools in the past. it wanted the government to fix school buildings and property and to build new schools because the number of students was going up. it said the government's laws and policies breached the french-speaking community's language rights under section 23. bc said there weren't enough students for new schools and that the existing schools were good enough. it also said it would cost too much to provide all the services the school board wanted. the trial judge said there were enough children for a school in some, but not all, parts of bc by not providing those schools, bc breached the french-speaking community's rights under section 23. but she said this didn't mean bc had to build new schools right away. she said it had to pay $6 million in damages for not funding school buses, though. the court of appeal agreed with the trial judge but said the government didn't have to pay the $6 million. the majority of judges at the supreme court of canada said the lower courts interpreted section 23 of the charter too narrowly. they said school helps preserve the language and culture of official-language minorities. that's why the right to go to school in the minority language is protected. the majority set out a way to decide what kinds of programs and services minority-language students should get. in general, it said they should get their own school if the government gave one to the same number of majority-language speakers somewhere in the province. this would promote fairness and make sure public funds are spent wisely. in bc, it means that there were enough students to justify eight new french-language schools. they said a trial court should decide about one more school. the majority also said all children deserve the same opportunities. that means that minority- and majority-language students should get the same quality and experience at school. going to a small school shouldn't mean students get a worse education. under section 1 of the charter, certain rights can be limited. but this is only if the limit is reasonable and can be justified in a free and democratic society. the majority said it would be very difficult to justify a limit for section 23. section 23 is already limited because the right depends on there being enough students. plus, it requires the government to spend money on schools. so the majority said that saving money wasn't a good enough reason to justify breaching section 23. the majority also said governments can't avoid paying damages for decisions based on their policies. this is in order to ensure they respect people's rights. that meant bc had to pay the $6 million for not funding school buses. it also had to pay $1.1 million because it hadn't given the school board enough money for rural schools. this was one of two cases heard during the supreme court's visit to winnipeg, manitoba in september 2019. it was the first time in history the court sat outside of ottawa.
+supreme court of canada the supreme court rules that stock options donated to charities by an employee are employment income under quebec's taxation act. mr. yves des groseillers worked for a company that granted him stock options, which he donated to registered charities. during an audit of his tax returns, the agence du revenu du qu bec (arq) added the value of the donated stock options to his employment income. that meant mr. des groseillers would have to pay more income tax. mr. des groseillers appealed arq's decision to the court of qu bec, which ruled in his favour. it found he received no benefit for donating his stock options, so their value should not be added to his employment income. the arq then appealed to quebec's court of appeal, which sided with the arq and restored the agency's original decision to add the stock options to mr. des groseillers' employment income. mr. des groseillers then appealed to the supreme court of canada. the supreme court has dismissed the appeal. arq was correct to add the value of the stock options to mr. des groseillers' employment income. in a unanimous ruling, the supreme court said the court of appeal correctly applied sections 50 and 422 of quebec's taxation act. pursuant to section 50 of the act, if an employee transfers stock options received under an employee plan to another person or organization they have no relation to, they are considered to have received a taxable employment benefit equal to the monetary value of those options. under section 422 of the act, such donations are considered to have been made at the fair market value of the stock options at the time of the gift. 'like the court of appeal, we conclude that the [arq] properly assessed mr. des groseillers for the benefit received', the supreme court said. arq was correct to add the value of the stock options to mr. des groseillers' employment income.
+supreme court of canada quebec courts can decide whether mining harmed an indigenous people's traditional territory, even though part of the territory is in newfoundland and labrador, the supreme court has ruled. the innu are first nations. they have lived in what is now quebec and newfoundland and labrador since long before europeans arrived. around 1950, a large mining project started. it spanned both provinces. the innu said it was on their traditional territory. they said the mining companies didn't ask permission to mine there. in 2013, the innu sued the companies. they said the project prevented them from enjoying and moving around their territory. the innu asked for three things. they asked for the companies to stop work on the project. they asked the companies to pay them for damages. and they asked the court to declare they had aboriginal title and other aboriginal rights over their traditional territory. the innu sued in quebec. but they were asking quebec courts to make a declaration about aboriginal title and rights over their whole traditional territory. part of it is in newfoundland and labrador. the government of newfoundland and labrador said quebec courts weren't allowed to make a declaration affecting newfoundland and labrador. the lower courts said quebec courts could decide all the issues. the majority of judges at the supreme court agreed with the lower courts. the judges looked at rules about how courts deal with issues that cross borders. they also looked at the nature of aboriginal title and rights. courts in a province generally can decide cases within their borders. but they have rules to deal with issues that cross provincial borders. quebec courts have the power to decide cases where the person being sued (the defendant) lives in quebec. this is true even if the lawsuit is related to something that happened outside quebec. the rules are different if the lawsuit is about property outside quebec, though. in this case, both mining companies were based in montreal. this meant the innu could ask quebec courts to make them pay damages and to stop mining work. the majority noted that having aboriginal rights and title to land isn't the same as owning property. the concept of property ownership comes from civil and common law (legal traditions that arrived with europeans). aboriginal title is different. it belongs to a group, not an individual. it's for the benefit of future generations, not just the current one. and it can't simply be sold. aboriginal title is really about the relationship between 'the crown' (canada) and indigenous groups. the crown has an obligation to act honourably within this relationship. this is called 'the honour of the crown.' the majority said the honour of the crown must always be interpreted in a way that brings us closer to reconciliation. section 35 of the constitution specifically recognizes aboriginal and treaty rights. it acknowledges that indigenous peoples lived in what we now call canada before europeans arrived. it also acknowledges that the crown has sovereignty (the power to govern). section 35 is meant to find a way to work within these two realities. since aboriginal rights existed before crown sovereignty, the majority said provincial borders shouldn't affect those rights. that means groups like the innu shouldn't have to fight the same legal battle in courts in different provinces applying the same law. this would lead to more cost and confusion. it could even mean the innu wouldn't be able to pursue their rights. this would go against the honour of the crown. this decision didn't say whether the innu should get what they were asking for. it only said quebec had the power to make a declaration about aboriginal rights and title over the innu's traditional territory. quebec courts could do this even though some of that territory was in newfoundland and labrador. (quebec courts could still say it was more appropriate for courts in newfoundland and labrador to decide, though.) even if the quebec courts said the project violated the innu's aboriginal rights and title, they couldn't force newfoundland and labrador to do anything. the innu would still have to negotiate with the government or go to court in that province. in this case, the court looked at reconciliation and the honour of the crown. it had to decide how to apply these concepts when deciding which court had power to decide on aboriginal rights and title. the court previously dealt with the honour of the crown in mikisew cree first nation v canada (governor general in council).
+supreme court of canada parliament had the power to make it a crime to force someone to get genetic testing or reveal their test results, the supreme court has ruled. genetic testing looks at genetic material (like dna) from a person's body. it can find out personal information, like what diseases a person might have, develop, or pass on to their children. parliament passed the genetic non-discrimination act to make rules on genetic testing related to diseases. it made it a crime to force someone to get that testing, or share their results, to sign a contract or buy something. for example, insurance companies couldn't make people get tested to get life insurance coverage. parliament also made it a crime to collect, use, or share the results of someone's genetic tests without their permission. anyone breaking the rules could be fined up to $1 million or put in jail for up to five years, or both. the government of quebec didn't think parliament had the power to make these rules. that's because canada's constitution gives different powers to the provinces and the federal government. for example, parliament (the branch of the federal government responsible for making laws) has the power to make criminal laws. provincial legislatures (which make laws for each province) can make laws about property and civil rights. this includes laws about buying and selling goods and services. if a provincial legislature or parliament passes a law that only the other has the power to make, the law will be unconstitutional. the government of quebec asked the quebec court of appeal to decide if the rules were unconstitutional. the attorney general of quebec said the rules were unconstitutional because they were really about making rules for insurance and employment contracts and promoting health, not about making criminal law. the attorney general of canada agreed. the attorneys general of quebec and canada both argued that the rules were unconstitutional. to make sure it heard the other side of the argument, the court of appeal appointed an 'amicus curiae' to argue that they were constitutional. 'amicus curiae' is a latin term meaning 'friend of the court.' it is an independent lawyer a court asks to take part in a case. the amicus curiae said the rules were meant to protect the security and dignity of vulnerable people, and to prevent outcomes that would be morally wrong. he said this fell under parliament's power to make criminal law. the court of appeal agreed with the attorneys general and said the rules were unconstitutional. it said parliament didn't have the power to make the rules because they were really about things under provincial power. the court of appeal said the rules didn't have anything to do with criminal law. the canadian coalition for genetic fairness was an 'intervener' when the court of appeal heard the case. interveners are people or groups who get the court's permission to give their point of view. they make arguments in writing. some are also allowed to make short arguments in person at the hearing. they help judges see different angles and make better decisions. the coalition said the rules fell under parliament's power to make criminal law because they protected people's health, privacy, and equality. the coalition appealed the court of appeal's decision to the supreme court. most of the judges at the supreme court said the rules were constitutional. five judges agreed that parliament had the power to create the rules. they said the rules were criminal law because they prohibited something and created punishments for breaking the rules, and because the rules were trying to prevent certain kinds of harm. they said this is what criminal law is meant to do. these judges disagreed over what the rules were really about and the kinds of harm they were meant to prevent. this case came to the supreme court as an appeal from a provincial 'reference.' references are questions that governments ask courts for their opinion on. (in law, an 'opinion' isn't just a belief or point of view. it is a formal explanation of the law.) the federal government can ask the supreme court for a legal opinion on an issue. provincial and territorial governments can ask their courts of appeal for opinions, and these opinions can be appealed to the supreme court. appeals in references from courts of appeal don't need leave (permission) to be heard by the supreme court. this case began as a reference to the quebec court of appeal by the quebec government.
+supreme court of canada both a provincial court and a superior court (allowed to decide criminal cases) have authority to hear and decide on bail applications of a youth charged under the criminal code, the supreme court has decided. this case deals with the legal concept known as 'jurisdiction'. jurisdiction means the authority of a court to hear and determine cases. specifically, if a judge of a superior court (with authority to decide criminal cases) is allowed to hear and decide a bail application of a youth charged with murder under the criminal code. in canada, the youth criminal justice act (ycja) is the law that governs the youth justice system. it applies to young people who are at least 12 but under 18 years old, who are alleged to have committed criminal offences. tjm was a young person according to the ycja. he was charged with second degree murder and the crown (prosecution) gave notice of the intention to seek an adult sentence if tjm was convicted. either of these facts allow the young person to choose the type of trial they want under the ycja. as such, tjm was given the choice of type of trial. he chose to be tried by a superior court judge alone (without a jury) with a preliminary inquiry. in alberta, the superior court is called 'court of queen's bench of alberta'. tjm's lawyer appeared in superior court to seek bail under a section of the ycja which saysif a young person is charged with an offence that falls under a specific section of the criminal code, only a youth justice court judge can release the young person from custody. murder is an offence that falls under that specific section of the criminal code. the superior court judge found that he did not have jurisdiction to hear the application for bail of a young person even if their choice was to be tried in the superior court. he found that only the designated youth justice court of the province had jurisdiction in this case, the provincial court. he based his decision on his interpretation of the ycja. in alberta, the provincial court is called 'provincial court of alberta'. all nine judges of the supreme court of canada agreed that the ycja defines 'youth justice court' as any court established by the province as a youth justice court and a judge sitting in that court as a 'youth justice judge'. the ycja also describes three circumstances where the superior court of criminal jurisdiction in the province would have authority. those are any of the circumstances where the youth is given the choice to decide on the type of trial and the youth chooses to be tried by a superior court judge with or without a jury. the supreme court judges said it did not matter what type of trial was chosen. the ycja requires that the youth be tried by a youth justice court judge. this means by either a judge of the provincial youth justice court or a judge of a superior court. the supreme court then looked at the meaning of the word 'proceeding' in this context. they said the word 'proceeding' was not limited to the trial. it includes any steps after a young person chooses to be tried in the superior court, including an application for bail. given that, a superior court judge has jurisdiction to hear and decide an application for bail. it also found that both the provincial youth justice and superior courts have the authority over bail in such circumstances. in this case, the issue was 'moot' before the supreme court heard it. this means a judge's decision does not matter for the immediate purpose of the parties. the crown had already entered a 'stay of proceedings', which means that the criminal process was stopped. tjm was released from custody and there would be no preliminary hearing or trial. this case has a 'publication ban', which in this case, means no one is allowed to publish anything that could reveal tjm's identity. courts use initials to protect the identities of those people involved in the case. the punishment for breaking the publication ban could be jail, a fine, or both. people may publish things about the case, as long as they don't reveal identities of people protected by the ban. as a general rule, the ycja protects the privacy of young people accused or found guilty of a crime by keeping their identity and other personal information confidential.
+supreme court of canada the supreme court rules that an online police investigation targeting people searching for sex with children was not entrapment. 'project raphael' was an online investigation conducted by the york regional police in ontario between 2014 and 2017. it targeted people searching online who wanted to pay to have sex with girls and boys. it involved police placing fake advertisements on the escort sub-section of a website called backpagecom people who engaged with these ads were led to text message conversations between a supposed 18-year-old sex worker, who was actually an undercover police officer. once the prospective client and the undercover officer agreed to a sexual transaction, the officer would then reveal that they were too young for sex work. every client who agreed to continue with the transaction and showed up to the designated hotel room, was arrested. project raphael led to the arrest of 104 men, including, including muhammad jaffer. mr. jaffer was charged with two offences: (1) telecommunicating with a person he believed was under the age of 18, for the purpose of obtaining sexual services; and (2) communicating to obtain sexual services for consideration from a person under the age of 18. a jury convicted mr. jaffer of both offences but he applied to have the proceedings against him stopped, alleging that he was the victim of police entrapment. mr. jaffer argued that officers had offered him the opportunity to commit a crime. to avoid an operation being considered entrapment, a police investigation must be a 'bona fide inquiry'. in this case, it meant that police must have had reasonable suspicions that a crime was being committed in the escorts section of the backpage.com website. having considered the entrapment test, the judge found that mr. jaffer was not entrapped and dismissed his application. mr. jaffer appealed to ontario's court of appeal, which dismissed his appeal. he then appealed to the supreme court of canada. the supreme court has dismissed the appeal. the supreme court heard this case together with r v ramelson, r v haniffa and r v dare, and the judgments are being rendered at the same time. those cases also involved individuals claiming they were entrapped as a result of project raphael. their appeals have also been dismissed. mr. jaffer was not entrapped. writing for a unanimous court, justice andromache karakatsanis ruled that mr. jaffer was not entrapped, for the reasons set out in r v ramelson. in that case, she had concluded that project raphael was a bona fide inquiry because 'police had reasonable suspicion in a space defined with sufficient precision'.
+supreme court of canada a convicted person has the right to the punishment that applied either when they committed their crime or when they are sentenced, whichever is lower, the supreme court has ruled. they don't have a right to the lowest punishment that might have existed any time in between. everyone charged with a crime has certain rights. these rights are found in the canadian charter of rights and freedoms, part of canada's constitution. section 11(i) sets out what happens when the punishment for a crime changes between the time a person commits the crime and the time they are sentenced for it. it says the person has the right 'to the benefit of the lesser punishment' in that case. mr. poulin committed sexual crimes between 1979 and 1987. he was charged in 2014, convicted in 2016, and sentenced in 2017. he was old and in poor health, so he asked for a conditional sentence. a conditional sentence meant mr. poulin wouldn't go to jail, but had to follow certain conditions. the sentencing judge agreed. the crown said the judge was wrong to give mr. poulin the conditional sentence. it said this wasn't an option either when mr. poulin committed his crimes, or when he was sentenced. it said that the judge could only look at those two points in time when deciding on the 'lesser' punishment. mr. poulin said section 11(i) meant the judge had to look at those two points in time. but he said the judge also had to look at all the points in time between. he said he should have the benefit of the lowest punishment that was available for his crimes at any time over those three decades. there was a period of time when the law made a conditional sentence an option for his crimes. he said section 11(i)'s guarantee of the 'lesser punishment' meant he should be able to get it. most courts in canada had followed mr. poulin's interpretation in the past. the court of appeal also agreed. the majority of the supreme court said mr. poulin's interpretation of section 11(i) was wrong. it said the sentencing judge should only look at the time the crime was committed and the time mr. poulin was sentenced when deciding the lesser punishment. the majority said rights should be interpreted generously but only within the limits set out by their purposes. looking at the purposes of section 11(i), the majority said only two points in time were really relevant to section 11(i) the first was the time the crime was committed. the punishment in force at this time reflected the legal risk the person took in choosing to commit the crime. the second was the time the person is sentenced. the punishment in force at this time reflects society's most up-to-date view on what is appropriate. the majority said section 11(i) wasn't meant to give a person the right to comb through the past to find the most favourable punishment ever available. section 11(i) protects people against the unfairness of being sentenced to a punishment that society no longer thinks is appropriate for their crimes. but it would be unfair to make lower punishments available to people who got away with their crimes longer. this is often the case with sexual crimes like mr. poulin's. longer time periods would mean more chance that punishments might change, even through error or oversight. offenders like mr. poulin would benefit from a punishment that had little connection either to their criminal behaviour or to society's view of the crimes when they were sentenced. section 11(i) clearly wasn't meant to work like that. the majority noted there could be a situation where the punishment changes between the time a person is charged and the time they are sentenced. it could be unfair to give them a harsher punishment that became law later if they relied on the lower one and turned themselves in. but the majority said this would have to be decided in a future case. the issue was moot before the supreme court heard it. 'moot' means a judge's decision doesn't matter for the immediate purpose of the parties. this was because mr. poulin died shortly before the supreme court heard the case. the court decided to hear it anyway because the issue was important and it might affect others.
+supreme court of canada a man found not guilty of killing an indigenous woman must be re-tried for manslaughter because trial rules for dealing with sexual history weren't followed, the supreme court has ruled. in 2011, ms. gladue bled to death from a wound inside her vagina. mr. barton was charged with first-degree murder, the most serious kind. in this case, it was considered so serious because the crown (the prosecution) said mr. barton murdered ms. gladue while sexually assaulting her with a weapon. it said he cut her with a sharp object while she was very drunk, and that he wanted to seriously harm or kill her. the crown said even if mr. barton wasn't guilty of murder, he was guilty of 'unlawful act manslaughter.' this is when someone causes another person to die while doing something dangerous and illegal that they should have known might cause serious harm. unlawful act manslaughter is 'included' in the charge of first-degree murder. a person can be found guilty of an included offence even if they aren't found guilty of the more serious crime. mr. barton said he hired ms. gladue to have sex two nights in a row. on the first night, he said, he put his hand in her vagina and thrust a few minutes before having sex. on the second night, he said, he did the same thing, but thrust deeper and harder. this time, he said, there was blood. he said she went to the bathroom to clean up, and he fell asleep. he said he found her dead the next morning. mr. barton said he didn't cut ms. gladue with a sharp object, and that her death was an accident. he said she agreed to the thrusting, so there was no sexual assault meaning there was no illegal act to turn what happened into first-degree murder or unlawful act manslaughter. or, at least, he said he honestly believed she agreed to it. what he honestly believed was important, because in sexual assault cases a person might have a defence if they honestly believe the other person agreed to the acts. the defence has to be based on facts and law. a person can't rely on a defence if they get the law wrong. the jury found mr. barton not guilty. but the crown said the judge made mistakes, and there should be a new trial. the court of appeal agreed. all the judges at the supreme court agreed that the trial judge made mistakes. the law says defences to sexual assault can't rely on things that support myths about women or sexual consent. that means these myths can't be used to help decide if someone agreed to a sexual act (or if the person charged honestly believed they did). the first myth is that women who have had sex before are more likely to agree to sex. the second is that such women might not be telling the truth. these are myths because they are false. the law puts rules in place to prevent these myths from affecting jury decisions. but the rules weren't followed in this case. mr. barton didn't ask the court for permission to tell the jury about ms. gladue's sexual history from the first night. the trial judge didn't decide which evidence was allowed or tell the jury how that evidence could be used in its decision. the jury didn't have the legal instructions it needed. the mistakes were serious enough that the judges said a new trial should take place. the majority said a new trial should only be for unlawful act manslaughter, not first-degree murder. this was because the trial judge's mistakes didn't affect the murder charge. that charge was based on the argument that mr. barton cut ms. gladue with a sharp object. the jury did not believe that happened. the majority said the jury's decision on the murder charge should stand. the majority also said that mr. barton had to believe ms. gladue communicated that she agreed, not just that she agreed to the sexual act. this case raised the issue of myths and prejudices about women, sex workers, and indigenous people, like ms. gladue. everyone has an equal right to dignity and respect. everyone has the right to make sexual choices about their own body. it doesn't matter who they are, or what their reputation is, or what they've done in the past. that's the law. if someone else doesn't respect those choices, it's a crime.
+supreme court of canada the supreme court rules the mandatory minimum sentences for robbery using either a prohibited or ordinary firearm do not constitute cruel and unusual punishment. on june 9, 2017, mr. ocean william storm hilbach and a 13-year-old accomplice robbed a convenience store in edmonton, alberta with an unloaded sawed-off rifle. with his face concealed, mr. hilbach pointed the rifle at two employees and demanded cash while his accomplice punched one employee and kicked the other. they left with $290 in lottery tickets and were apprehended shortly after. at the time, mr. hilbach was 19 years old, on probation and subject to a firearms prohibition order, having been sentenced for several other offences three months earlier. in january 2018, mr. hilbach pleaded guilty to robbery using a prohibited firearm contrary to section 344(1)(a)(i) of the criminal code. at sentencing, mr. hilbach brought a challenge under section 12 of the canadian charter of rights and freedoms to the five-year mandatory minimum sentence. section 12 of the charter guarantees the right not to be subjected to cruel and unusual punishment. mr. hilbach claimed section 344(1)(a)(i) was grossly disproportionate to him as an indigenous person and member of the ermineskin cree nation. before the sentencing judge, mr. hilbach filed a gladue report, which indicated that members of his family attended residential schools, struggled with addictions to alcohol or other substances, and suffered financial difficulties. the gladue report gets its name from the supreme court of canada's 1999 ruling in r v gladue, which established factors that courts must take into account when sentencing indigenous offenders. in the case of mr. hilbach, the sentencing judge decided that the mandatory minimum sentence was grossly disproportionate and violated section 12. he sentenced mr. hilbach to two years less a day. on september 13, 2016, in an unrelated case, mr. curtis zwozdesky and two masked accomplices robbed a convenience store in caslan, alberta. one of the accomplices pushed an employee, pointed a sawed-off shotgun at her, and demanded cash. a shot was fired into a shelf. mr. zwozdesky never entered the store during the robbery, but drove the accomplices to and from the store. mr. zwozdesky pleaded guilty to robbery with a firearm contrary to section 344(1)(a.1) of the criminal code. at that time, the law imposed a mandatory minimum sentence of four years in prison. at sentencing, mr. zwozdesky challenged the mandatory minimum sentence under section 12 of the charter. the sentencing judge found that the mandatory minimum sentence was not grossly disproportionate for mr. zwozdesky and sentenced him to three years' imprisonment. however, she concluded that it would be grossly disproportionate in reasonably foreseeable hypothetical scenarios and declared the law of no force or effect. alberta's court of appeal heard the two cases together and dismissed the appeals. it also added a year to mr. hilbach's sentence. it did not change mr. zwozdesky's sentence. the crown then appealed both cases to the supreme court of canada. the supreme court allowed the appeals. the mandatory minimum sentences at issue are constitutional. writing for a majority of the judges, justice sheilah l martin ruled that the mandatory minimum sentences for mr. hilbach and mr. zwozdesky do not constitute cruel and unusual punishment. she applied the framework set out in the companion appeal of r v hills for challenges to the constitutionality of a mandatory minimum sentence under section 12 of the charter. in regard to mr. hilbach, justice martin added that the section 12 analysis makes it mandatory for judges to consider the unique situation of indigenous offenders for all offences in sentencing.
+supreme court of canada the supreme court has refused a man's request to take back his guilty plea because he didn't show what he would have done differently if he'd known he could be deported. wing wha wong came to canada from china over 25 years ago, but never became a citizen. he was married and had a child who was born in canada. in 2014, he pleaded guilty to cocaine trafficking. he didn't know that pleading guilty and being convicted of trafficking could result in him being deported. while he was in prison, however, he received a call from an immigration officer. because he was not a canadian citizen, the officer told him he likely could not stay in canada because he had committed a serious crime. a crime is 'serious' when its possible prison sentence is ten years or more, or where a person receives a sentence of more than six months. a person convicted of cocaine trafficking could get a life sentence. mr. wong was sentenced to nine months. his crime was considered serious and so he could be required to leave canada for both these reasons. mr. wong was told he would have to attend an immigration hearing when he was released, and could be deported. immigration rules also said he could not appeal the deportation for any reason. in criminal law, a guilty plea must be the person's own personal decision, it must be clear and specific, and it must be based on all the necessary (legally relevant) information. an accused person must understand what might happen once s/he pleads guilty. this includes punishment, but also non-criminal consequences, such as deportation. a person who wants to take back an uninformed plea must show that the missing information was serious and caused him or her harm. harm occurs where the person shows that s/he would have decided to go to trial, or pleaded guilty under different conditions, if s/he had all the necessary information at the time of the plea. after serving his sentence, mr. wong sought to take back his guilty plea, arguing that he did not know he could be deported. the british columbia court of appeal rejected his arguments because he did not specifically say he would have chosen to go to trial if he knew this. mr. wong appealed. at the supreme court, the majority said that mr. wong should not be able to take his plea back. justices michael moldaver, cl ment gascon, and russell brown, writing together, accepted that mr. wong did not have all the legally relevant information when he pleaded guilty. like the court of appeal, however, they noted that he didn't show that he would have done anything differently. a decision to plead guilty to a crime is deeply personal. courts must therefore look at the person, and what s/he specifically would have done, when deciding whether to allow the person to take back a plea. they noted that an approach that disregards the deeply personal nature of a guilty plea, and looks instead at what a person in a similar situation would have done, would be difficult for courts to apply. one other judge agreed with justices moldaver, gascon, and brown. justice richard wagner (who was not yet chief justice when the appeal was heard) disagreed. he would have let mr. wong take his plea back and ordered a new trial. he agreed that mr. wong didn't have all the necessary information when he decided to plead guilty. justice wagner disagreed that courts should look at the specific accused person. instead, he said courts should take a more objective view and look at what a person in a similar situation might have done. he said mr. wong probably would have done something differently had he known he could be deported, so the process was not fair. two judges agreed with justice wagner. most criminal cases end with a guilty plea. for the justice system to work well, it is important that guilty pleas be final. but this is unjust when a guilty plea is flawed. this decision confirms that someone can withdraw a guilty plea by showing s/he did not have legally relevant information at the time, and would have done something differently if s/he had it.
+supreme court of canada bc does not have to give a tobacco company databases of health care information about individual bc residents as part of a lawsuit, the supreme court has said. in 2000, the province of british columbia passed the tobacco damages and health care costs recovery act. this let it sue tobacco companies for health-care costs related to tobacco use, and the supreme court found it constitutional in 2005. in 2001, bc sued philip morris international and other tobacco companies. philip morris makes and sells marlboro cigarettes, among other brands. bc sued 'on an aggregate basis,' meaning on behalf of a group of insured persons, rather than for any individual. to prove that tobacco caused health care problems and how much those problems cost, it said it would rely on several databases. the databases held individual health-care information for bc residents between 1991 and 2011, such as costs of medical care, prescription drug use, and status of health coverage. anyone being sued has a right to see the evidence the other party is relying on. this allows a defendant to challenge the evidence, and is part of a fair trial. philip morris asked for the databases. however, the act said that if bc sued on behalf of a population ('on an aggregate basis'), it could not share information about individuals insured by its health plan. as a compromise, bc said that the tobacco companies could look at individual-level information at a statistics canada research data centre, under strict controls. while other tobacco companies agreed, philip morris did not think this was enough to make the trial fair. it asked the court to order bc to give it the databases directly, with names and other identifying information removed. it also asked for individuals to be linked across databases, to make it easier to analyze the data. the trial judge ordered bc to share the databases, after removing identifying information. he said that the databases were not the kind of health care records the act was meant to cover. the court of appeal agreed. it said that bc should not be able to rely on evidence while denying philip morris access to it. it also said there was no real threat to personal privacy. justice russell brown, writing for a unanimous supreme court, disagreed with the lower courts and ruled for bc. he said the databases did contain information about individuals, so could not be shared. compiling individual health-care information into databases did not change the kind of information it was. besides, the act said even documents relating to individual health care benefits could not be shared. the lower courts did not consider this. justice brown said the lower courts were wrong to focus on how relevant the databases were to the lawsuit, rather than on the kind of information the act said could not be shared. he also pointed out that information about 'particular' insured persons did not mean information about 'identifiable' insured persons under the act. that meant that removing identifying information would not solve the problem. justice brown said that it was too early in the process to talk about trial fairness, because the act protected it in other ways. also, the supreme court had already found the act constitutional, meaning it considered it would not lead to unfair trials. he noted that bc would have to share the databases with philip morris if an expert witness relied on them in court. philip morris could also ask for a 'statistically meaningful sample,' with identifying information removed, under a different part of the act. in a similar case in 2016, the new brunswick court of appeal said that new brunswick did not have to share similar databases with tobacco companies. (the act passed by new brunswick is mostly the same as bc's.) this decision ensures a similar provision is applied the same way in both provinces.
+supreme court of canada the supreme court rules a grandmother should have custody over a child despite the father's closer biological tie. the father and mother were married in 2012 in alberta. they separated less than a year later when the mother moved to prince edward island (pei) the father was unaware the mother was pregnant when she left. shortly after the child was born in 2013, the maternal grandmother went to reside with the mother and child to help support them. when the child was four years old, the mother refused to allow the grandmother further contact with him. the child was then apprehended by the director of child protection, as he was found to be needing protection. he was eventually placed in the grandmother's care. the director subsequently alerted the father of the child's existence. the father and the grandmother applied for permanent custody separately from each other. the hearing judge held it was in the child's best interests for the grandmother to have custody. the father appealed to the court of appeal of pei, which gave him custody. the grandmother then appealed to the supreme court of canada. the supreme court has said the grandmother should have custody. the standard of review to be applied by appeal courts in child protection cases writing for a unanimous supreme court, justice sheilah martin said the grandmother should have custody. the court of appeal should have deferred to the hearing judge's decision in this regard, justice martin explained. the most important consideration in a child custody case is the best interests of the child. a judge's ruling on a child custody matter is owed deference when reviewed by an appeal court. an appeal court may only change a ruling if there was a material error, a serious misapprehension of the evidence, or an error in law. the same standard applies in custody cases involving child protection, unless there is legislation to the contrary. nothing in pei's child protection act suggests a different standard. in this case, the supreme court found no error in the hearing judge's assessment of the best interests of the child. the hearing judge based her analysis on an extensive review of the evidence, and was not compelled to decide in favour of the father simply due to a closer biological tie. biological ties carry minimal weight in the assessment of a child's best interests a parent's biological tie is simply one factor among many that may be relevant to a child's best interest, justice martin said. judges are not required to treat biology as a tie-breaker when two prospective custodial applicants are otherwise equal. placing too great an emphasis on a biological tie could lead some judges to give effect to the parent's claim over the child's best interests. parental preferences should not prevail over the child's best interests. 'while biological ties may be relevant in a given case, they will generally carry minimal weight in the assessment of a child's best interests', justice martin wrote.
+supreme court of canada the supreme court of canada rules that police officers cannot sue crown prosecutors for decisions they make about how to conduct a criminal case. three toronto police officers arrested two individuals in connection with a complaint of armed robbery and forcible confinement. prior to trial, one of the accused men filed an application to stay (stop) the proceedings against him and to exclude the evidence of a confession he made on the day of the arrest. this was based on his claim that the police beat him during the arrest and caused a serious rib injury. the assistant crown attorney and a senior crown attorney agreed that the confession would not be admissible, and the charges against him were stayed. the other accused was convicted, but he filed a stay application alleging that the officers assaulted him during the arrest. the assistant crown attorney did not call the officers to give evidence and conceded that the assaults occurred. the judge convicted him but reduced the sentence. her reasons described the assaults in detail and described the officers' conduct as 'police brutality'. those findings were reported in the media. the toronto police service professional standards unit then conducted its own review of the allegations of misconduct against the officers, concluding that the allegations could not be substantiated. the court of appeal entered a stay of proceedings. it strongly criticized the officers' conduct. its findings were also reported in the media. after the appeal, the officers filed a lawsuit against the attorney general. they claimed to have suffered irreparable harm to their reputations and credibility as a result of the crown attorneys' decisions not to call their evidence. this is the first time the supreme court has had a chance to consider whether the police can sue crown prosecutors for the way they conduct a case. the concept of 'prosecutorial immunity' means crown prosecutors generally cannot be sued for actions they take in performing their public duties. there is an exception for a person who is wrongfully and maliciously prosecuted. the majority of the judges concluded that prosecutors do not owe legal duties to the police with respect to how they carry out a prosecution. piercing the immunity of crown prosecutors to make them accountable to police officers would put them in conflict with their duties of objectivity, independence and integrity in pursuit of ensuring a fair trial for the accused and maintaining public confidence in the administration of justice. the need to safeguard and vindicate the rights of the accused, who is uniquely vulnerable to the misuse of prosecutorial power, is crucial. allowing police officers to sue prosecutors for decisions they make in the course of criminal proceedings would create risks to the rights of the accused and to prosecutorial independence and objectivity, and would undermine the integrity of the criminal justice system. it would also be fundamentally incompatible with the mutually independent relationship between the police and the prosecutor. the police's role is to investigate crime; the crown prosecutor's role is to assess whether a prosecution is in the public interest and, if so, to carry out that prosecution in accordance with the prosecutor's duties to the administration of justice and the accused.
+supreme court of canada the actual relationship not the words in a contract will determine whether someone is an employee, the supreme court has ruled. modern cleaning concept offered cleaning services. it signed contracts with clients and managed the business, but hired cleaners (which it called 'franchisees') to do the actual cleaning. clients got bills from modern cleaning concept, not from the cleaners. mr. bourque had his own part-time cleaning business in the quebec city area. his spouse helped him with cleaning jobs. in 2014, he became one of modern cleaning concept's cleaners. the agreement said mr. bourque was an independent contractor and had full control over his business. but it also said modern cleaning concept had a lot of control over him. mr. bourque had to report any complaints right away, and fire an employee if the company or a client asked. he had to report any new possibilities for cleaning contracts, so the company could sign the client. modern cleaning concept paid mr. bourque directly, and would deduct amounts he owed under the agreement. this could be up to 43% of what he earned. after five months, mr. bourque left because he couldn't build his business or make profits. he ended the agreement and went back to his own business. in the quebec city area, employees cleaning public buildings are covered by a collective agreement. this is called the decree respecting building service employees in the qu bec region. 'employee' is defined in the act respecting collective agreement decrees. it doesn't include independent contractors. the comit paritaire de l'entretien d' difices publics de la r gion de qu bec (the committee) makes sure the decree is followed. the committee looked at mr. bourque's situation. his agreement with modern cleaning concept said he was an independent contractor. but the committee thought he was really an employee. this would mean the company owed mr. bourque and his spouse over $9,000 in unpaid wages and benefits. it took the claim to court on their behalf. the trial judge said mr. bourque was an independent contractor. but the majority at the court of appeal said he was an employee. it said the trial judge should have thought more about the company's business model. it said the way three different parties (modern cleaning concept, its clients, and mr. bourque) were tied together was important to deciding this case. the majority at the supreme court agreed with the court of appeal. it said that to decide if someone is an independent contractor or an employee really depends on the specific facts. independent contractors are more like businesses. they take on business risks in order to make profits. employees don't. looking at the contract with the client and the agreement with mr. bourque, it was clear that modern cleaning concept kept the risk and the chance to profit. it was responsible to its clients for making sure the work got done. it was rewarded for taking this risk, with up to 43% of mr. bourque's earnings. it controlled him closely with the conditions set out in its agreement with him. because of these restrictions, mr. bourque couldn't really build his business or make a profit. that meant he was an employee. in this case, a person was found to be an employee under a specific law (the act respecting collective agreement decrees). someone can be considered an employee under one law (for example, the act) but not another (for example, employment insurance legislation). each situation depends on its own facts.
+supreme court of canada the supreme court restores an alberta man's acquittal for attacking a woman while in a state of automatism. on the night of january 12, 2018, matthew winston brown consumed alcohol and 'magic mushrooms' at a party in calgary, alberta. the mushrooms contain psilocybin, an illegal drug that can cause hallucinations. mr. brown lost his grip on reality, left the party and broke into a nearby home, violently attacking a woman inside. the woman suffered permanent injuries as a result of the attack. when mr. brown broke into another house, the couple living there called the police. mr. brown said he had no memory of the incidents. mr. brown was charged with aggravated assault, breaking and entering, and mischief to property. he had no previous criminal record and no history of mental illness. at trial, mr. brown pleaded not guilty to the charges of 'automatism'. automatism is when someone claims to have been so intoxicated or impaired that they had lost complete control of themselves. the crown argued mr. brown could not rely on automatism because section 33.1 of the criminal code prevents a person from using automatism as a defence for crimes involving assault or interference with the bodily integrity of another person. mr. brown responded that section 33.1 of the criminal code violates sections 7 and 11(d) of the canadian charter of rights and freedoms. section 7 guarantees everyone the right to life, liberty and security of the person, whereas section 11(d) guarantees everyone the right to be presumed innocent until proven guilty. the judge agreed with mr. brown and acquitted him. the crown appealed to alberta's court of appeal, which disagreed and convicted mr. brown. he then appealed to the supreme court of canada. the supreme court has restored the acquittal. the supreme court heard this case together with r v sullivan, and the judgments are being rendered at the same time. section 33.1 of the criminal code violates sections 7 and 11(d) of the charter and is therefore unconstitutional. writing for a unanimous supreme court, justice nicholas kasirer said section 33.1 of the criminal code violates sections 7 and 11(d) of the charter in a way that cannot be justified in a free and democratic society and is unconstitutional. he wrote that section 33.1 violates section 11(d) of the charter because society could interpret someone's intent to become intoxicated as an intention to commit a violent offence. section 33.1 also violates section 7 because a person could be convicted without the prosecution having to prove that the action was voluntary or that the person intended to commit the offence. convicting someone for how they conducted themselves while in a state of automatism violates principles of fundamental justice. our criminal justice system is based on the notion of personal responsibility. in canada, two elements of fundamental justice are required for a person to be found guilty of a crime. they are: a guilty action; and (2) a guilty mind. neither element is present when a person is in a state of automatism. parliament could enact legislation to address violence caused by extreme intoxication. the court explained that parliament could enact new legislation to hold an extremely intoxicated person accountable for a violent crime. the court emphasized that, 'protecting the victims of violent crime particularly in light of the equality and dignity interests of women and children who are vulnerable to intoxicated sexual and domestic acts is a pressing and substantial social purpose'.
+supreme court of canada provincial contract law, not federal maritime law, applied to a contract for ship-engine parts, the supreme court has ruled. desgagn s transport was a shipping company in quebec. wärtsilä was a company that made and sold ship engines. in 2006, desgagn s transport ordered $1 million in parts from wärtsilä to fix a ship engine. the contract said wärtsilä would only have to pay up to 50,000 if the parts didn't work. three years later the shiphad a major engine failure. one of the parts had been faulty all along. desgagn s transport sued wärtsilä for the cost of repairing the ship and for its lost profits. the total was over $5.6 million. the issue in this case was which body of law applied. when parties make a contract, they can say which law they want to apply. since they both agree to it by signing the contract, courts will generally respect the choice. in this case, the contract didn't say which law applied, so the courts had to decide. there were two possibilities. the first was provincial contract law. in quebec, this is the civil law found in the civil code. under these rules, wärtsilä would not be able to limit its liability (its legal responsibility) by saying so in the contract. this meant it would be liable for the defective part and would have to pay desgagn s transport the full cost. the second possibility was federal maritime law. this is a separate system of law, like common law or civil law, and covers all kinds of disputes closely tied to navigation and shipping. if federal maritime law applied, wärtsilä wouldn't be liable for the defective part. it would only have to pay what the contract said. the reason two possible bodies of law could apply was that provincial and federal governments have different powers. these are set out in canada's constitution. the constitution says the federal government has power over navigation and shipping. provincial governments have power over property and civil rights. contracts usually fall under provincial powers. the trial judge said provincial contract law applied. the majority of the court of appeal said federal maritime law applied. all the judges at the supreme court agreed that provincial contract law applied. (though some said this for very different reasons.) that meant wärtsilä had to pay the full $5.6 million. the majority noted that issues can't always be divided easily into federal or provincial powers. in these cases, courts must be flexible. where there is overlap, they try to make sure both levels of government have as much of a role as possible. the majority said selling ship-engine parts fell under federal maritime law. this was because it is closely tied to navigation and shipping, a federal power. however, selling goods is also covered by property and civil rights, which the provinces have power over. in constitutional law, a situation like this is called a 'double aspect scenario.' it means both levels of government have power at the same time. if this happens, courts will look at whether there is any reason why only one government's power should apply. in constitutional law, two possible reasons are 'interjurisdictional immunity' and 'federal paramountcy.' 'interjurisdictional immunity' is when something goes to the core of a power, so the other level of government isn't allowed to impair (lessen) it. in that case, one government has 'immunity' from the other's power. 'federal paramountcy' applies when laws passed by federal and provincial governments are at odds. it means federal law prevails, and the parts of provincial law that go against it aren't applied. in this case, the majority said contracts for ship-engine parts didn't go to the core of navigation and shipping. that meant the federal power didn't have immunity from the provincial power. so the first reason (interjurisdictional immunity) didn't apply. for the second reason, the majority noted that federal paramountcy is meant to make sure provincial legislatures don't override the federal parliament. but federal maritime law is mostly based on court decisions and custom, not laws written and passed by parliament. court decisions and custom can't trump laws created by legislatures, like quebec's civil code. that meant the second reason, federal paramountcy, didn't apply. so, provincial contract law applied and wärtsilä had to pay the full $5.6 million. maritime law has both common and civil law roots. it is one of the oldest bodies of law. while maritime cases used to be heard in their own separate courts, today they are heard by regular courts.
+supreme court of canada companies are responsible for the cost of complying with environmental orders, not the government, the supreme court has ruled. in the 1960s, there was a pulp and paper mill in dryden, ontario. a plant on the site produced chemicals to bleach the paper. the process involved using mercury. at the end of the process, the waste was dumped into nearby rivers. the mercury flowed downstream, where it poisoned people. residents of the grassy narrows and islington first nations suffered serious, long-term health effects. in 1977, two first nations bands sued for damage from the mercury contamination. by the late 1970s, the mill and plant were owned by a company called reed. another company, great lakes forest products, was interested in buying the properties. but it wasn't sure about buying because of the lawsuit. a site had been built to safely bury the waste. samples were taken and tested regularly to make sure there were no leaks. but great lakes didn't want to be held responsible for past pollution. the provincial government was afraid the local economy would suffer if the pulp and paper mill closed, so it wanted the sale to go through. it said it would give great lakes an 'indemnity.' an indemnity is a kind of financial protection. in this case, the government agreed to cover costs above $15 million to settle legal claims for past pollution. in exchange, great lakes agreed to spend about $200 million to expand and upgrade the mill. the sale, with the indemnity agreement, went through in 1979. the first nations' lawsuit ended in 1985. as part of the settlement, the government gave great lakes and reed a new indemnity. it covered all claims due to previous pollution damage, including the mercury. it replaced the one from 1979 (and another from 1982). it applied to anyone who might take over the mill later. in 2009, bowater owned the waste disposal site, which was now separate from the mill. it filed for bankruptcy. as part of this process, a court allowed it to abandon the site in 2011. but the ontario ministry of the environment said bowater and weyerhaeuser (the previous owner) still had responsibilities. it ordered them to repair the waste disposal site, keep monitoring and testing, and take steps to prevent and deal with leaks. weyerhaeuser said the indemnity from the 1985 settlement applied to the order. it said the provincial government had to pay for all the costs of complying. bowater, which had become resolute forest products, said the same thing. the motion judge said the indemnity applied to the order. that meant the government had to cover the cost. the majority at the court of appeal said it applied but resolute couldn't claim it. it said the lower court should decide whether weyerhaeuser could. the majority of judges at the supreme court said the indemnity didn't apply to the order. that meant resolute and weyerhaeuser had to cover the costs of complying with it. the majority noted that the 1985 agreement didn't say the government would cover the company's costs of following environmental rules. it also wasn't meant to cover claims between the government and the company. it was only supposed to cover claims by third parties (that is, people who didn't sign the agreement). the majority noted that the indemnity referred to 'pollution claims.' but this wasn't a pollution claim. there were no leaks and so no new pollution had happened. the order was about monitoring and testing to prevent more pollution. the majority said the indemnity was meant to cover claims for new pollution or for mercury already present in the environment from before. it didn't mean claims for the mercury safely contained in the waste disposal site. the motion judge said mercury was leaking from the site, but this was a mistake. the motion judge also said that the government gave the indemnity in 1985 as part of an exchange. in return, great lakes would invest in the dryden plant. but this was a mistake. great lakes had already agreed to make this investment in 1979. it didn't make any new commitments for the 1985 indemnity. the motion judge made his decision on the wrong facts, so the majority at the supreme court was allowed to change it. this case dealt with a company that was going bankrupt. companies can still be responsible for following environmental rules even when they go bankrupt.
+supreme court of canada the supreme court rules that an arbitration agreement does not trump a lawsuit. peace river hydro partners is a partnership of several businesses formed to build a hydroelectric dam in northeastern british columbia. in 2015, peace river subcontracted some work to petrowest corporation, an alberta-based construction company and its affiliates. the contracts for this work contained agreements that the two parties would settle any disputes through arbitration. not long after, petrowest found itself in financial difficulty and could not repay its debts. under the bankruptcy and insolvency act, an alberta court appointed the company ernst & young as 'receiver' for petrowest. that meant ernst & young were responsible for taking control of the company with the purpose of helping petrowest repay its creditors. the receiver started a lawsuit against the peace river partnership in british columbia, seeking to collect on money it said was owed to petrowest and its affiliates for subcontracted work. peace river responded by asking the court to stop the lawsuit. it argued that the dispute should be settled by arbitration, as outlined in its contract with petrowest. section 15(1) of british columbia's arbitration act states that if one party to an arbitration agreement starts legal action, the other party can ask the court to stop the lawsuit. section 15(2) states that a court must stop the legal proceedings unless it determines that the arbitration agreement is void, inoperative or incapable of being performed. the receiver opposed peace river's attempt to stop the lawsuit. ernst & young argued that the bankruptcy and insolvency act permits the court to exercise central judicial control over the dispute instead of sending the receiver to multiple arbitration forums. the judge agreed with the receiver and allowed the lawsuit to proceed. peace river appealed that decision to the court of appeal for british columbia. when it dismissed the appeal, peace river appealed to the supreme court of canada. the supreme court has dismissed the appeal. the lawsuit against peace river can proceed to trial. the arbitration agreements are inoperative. the supreme court unanimously dismissed the appeal. explaining why the majority of judges dismissed the appeal, justice suzanne côté said the arbitration agreements were inoperative. she said section 15 of the arbitration act does not mean a court must always stop a lawsuit by a court-appointed receiver when there has been an agreement to arbitrate. rather, a court may allow the lawsuit to proceed if the party trying to avoid arbitration proves the arbitration agreement is 'void, inoperative or incapable of being performed' within the meaning of section 15(2). an arbitration agreement can be considered inoperative 'if enforcing it would compromise the orderly and efficient resolution of the receivership'. this analysis is highly fact-specific. in this case, there were multiple and overlapping arbitration agreements. this would have involved the receiver participating in and funding at least four different arbitrations with seven different sets of parties. paying for these processes would have come from the assets of petrowest and its affiliates. this would only hurt the creditors and run contrary to the objectives of the bankruptcy and insolvency act. the majority found that settling the matter with one lawsuit would be faster and cheaper, which was in the interest of the receivership.
+supreme court of canada a teacher who recorded students with a hidden camera is guilty of voyeurism, the supreme court has ruled. students doing normal activities at school don't give up their privacy rights even though technology makes it easier to record them. voyeurism became a crime in the criminal code in 2005. it is when someone secretly watches or records someone else who reasonably expects privacy, in one of three specific situations. one of the situations is where the watching or recording is done for a sexual purpose. every crime in the criminal code has specific requirements or 'elements' that are part of that crime's definition. when someone is found 'guilty beyond a reasonable doubt,' it means that each element of the crime has been proven against them beyond a reasonable doubt. for the crime of voyeurism, there are three elements. they are (1) the secret watching or recording, (2) the reasonable expectation of privacy of the person being watched or recorded, and (3) the specific situation (eg, the sexual purpose). mr. jarvis was a high school teacher. he used a camera hidden inside a pen to record female students doing ordinary school activities in classrooms, hallways, and other common areas. most of the videos focused on female students' faces and upper bodies, especially their chests. the students didn't know they were being recorded. the videos were of high quality and could be downloaded onto a computer. the trial judge looked at the evidence and said the students had a reasonable expectation of privacy. but he wasn't convinced beyond a reasonable doubt that mr. jarvis made the recordings for a sexual purpose. he found mr. jarvis not guilty because of this. the majority of the court of appeal said there was proof beyond a reasonable doubt that mr. jarvis had made the videos for a sexual purpose. but it didn't think the students had a reasonable expectation of privacy at the time. it also said mr. jarvis was not guilty. the supreme court had to decide one question. this was whether students could have reasonably expected privacy specifically, privacy from the type of secret recording mr. jarvis did in the common areas of their school. all of the other elements had been proven beyond a reasonable doubt. all the judges at the supreme court agreed that mr. jarvis should be found guilty. they said the students reasonably expected not to be recorded by a teacher's hidden camera at school. to determine when someone should be reasonably able to expect privacy, the majority said courts need to look at the entire situation. this could include where the watching or recording happened, how it was done, and any rules or policies in place. it could also include whether the person was just watching or was recording (because a recording can capture more detail, is permanent, and can be easily viewed, edited, and shared). it could also include looking at the relationship between the parties. the majority also looked at the way privacy has been defined in charter cases. technology has made it much easier to get, store, and share information about others. but the majority said that doesn't mean people have to give up their right to privacy just because there is a risk it can be violated. technology may make it easier to violate someone's privacy, but that doesn't mean a person should have to accept it. in this case, the majority noted the students were recorded in a school. the recording violated school board policy, as well as the relationship of trust between a teacher and a student. the videos targeted particular female students, often focusing on their breasts. the students would never expect to be recorded in such a way, by a teacher, in their school. they clearly had a reasonable expectation of privacy. this case came to the supreme court as an appeal 'as of right.' that means there is an automatic right to appeal, and the court's permission isn't needed. the right is automatic in criminal cases when a court of appeal judge dissents (disagrees) on a point of law, as happened here. both the person charged and the crown (the prosecution) can appeal when this happens. in this case, the crown appealed. this was the first time the elements of the crime of voyeurism in s 162(1) of the criminal code were considered by the court.
+supreme court of canada the supreme court orders a new trial for an ontario man accused of murder. in the early morning hours of february 4, 2016, peter khill shot and killed jonathan styres, a young man who was breaking into his truck. the vehicle was parked in the driveway of mr. khill's home, in a rural area on the outskirts of hamilton, ontario. before the shooting, mr. khill was awoken by his partner who alerted him to loud noises coming from the driveway next to their bedroom window. looking out the window, mr. khill saw the dash lights of his truck were on, indicating that someone was, or had been, in the truck. at that point, mr. khill retrieved his shotgun, went outside and confronted mr styres moments later, he fired two shots, killing mr. styres. when police arrived on the scene, they arrested mr. khill. he told the arresting officer that he had been a soldier. he also said the intruder had raised his hands to gun height, so he reacted as he did. mr. khill was charged with second degree murder. at trial, he testified that he shot mr. styres in self-defence, believing mr. styres was armed and about to shoot him. mr. khill's training as a former part-time reservist was raised at trial. a jury found mr. khill not guilty and acquitted him. the crown appealed. the ontario court of appeal overturned the acquittal and ordered a new trial, finding that the jury was not property instructed on the principles of self-defence. mr. khill appealed that decision to the supreme court of canada. the supreme court has dismissed mr. khill's appeal and has ordered a new trial. the trial judge should have instructed the jury on self-defence and on mr. khill's role in the incident. writing for the majority, justice martin said the jury received no instructions from the trial judge on how mr. khill's role in the incident should inform its assessment of the reasonableness of his conduct. she said this was an error that had an important effect on the verdict. justice martin explained that a 'person's role in the incident' refers to 'the person's conduct during the course of the incident, from beginning to end, that is relevant to whether the ultimate act was reasonable in the circumstances.' in this case, if the jury had been properly instructed, it may have arrived at a different conclusion. she said the jury may have found, for example, that mr. khill's conduct increased the risk of a fatal confrontation with mr. styres outside the home. they may also have assessed mr. khill's decision to advance into the darkness against other alternatives he could have taken, such as calling 911, shouting from the window or turning on the lights. those actions may have prevented the mistaken belief that mr. styres was armed and avoided the need to use deadly force. as a result, the majority concluded that a new trial is necessary to ensure the jury is appropriately instructed on the principles of self-defence and the significance of mr. khill's role in the incident.
+supreme court of canada the supreme court confirms a man's acquittals and the court of appeal's order for a new trial for another man in cases involving automatism. these cases are about two ontario men, david sullivan and thomas chan, who committed violent acts while extremely intoxicated from drugs they had voluntary taken. the events are unrelated, but both men argued that the drugs left them in states of 'automatism'. automatism is when someone claims to have been so intoxicated or impaired that they lost complete control of themselves. mr. sullivan took an overdose of a prescription drug, fell into an impaired state and attacked his mother with a knife, gravely injuring her. he was charged with several offences, including aggravated assault and assault with a weapon. mr. chan took 'magic mushrooms', which contain a drug called psilocybin. he fell into an impaired state, attacked his father with a knife and killed him, and seriously injured his father's partner. mr. chan was tried for manslaughter and aggravated assault. in addition to the defence of automatism, he said an underlying brain injury was also to blame for his actions. section 33.1 of the criminal code prevents a person from using automatism as a defence for crimes involving assault or interference with the bodily integrity of another person. at their respective trials, mr. sullivan and mr. chan argued that section 33.1 violates sections 7 and 11(d) of the canadian charter of rights and freedoms (charter). section 7 guarantees everyone the right to life, liberty and security of the person, whereas section 11(d) guarantees everyone the right to be presumed innocent until proven guilty. in mr. sullivan's case, the trial judge accepted that he was acting involuntarily, but said section 33.1 prevented the defence of automatism and convicted him. in mr. chan's case, a different trial judge said he did not have to follow previous decisions of the same court declaring section 33.1 unconstitutional. he also said mr. chan's brain injury was not the cause of his actions. as a result, he convicted mr. chan. both men appealed to the ontario court of appeal, which heard the appeals together. the court of appeal acquitted mr. sullivan and ordered a new trial for mr. chan since no actual finding of fact had been made about automatism in his case. the crown then appealed both rulings to the supreme court of canada. the supreme court has dismissed the appeals. in r v brown, the supreme court decided section 33.1 of the criminal code was unconstitutional. writing for a unanimous supreme court, justice nicholas kasirer said the supreme court's ruling in r v brown, which was heard together with these appeals and whose judgment is being rendered at the same time, is applicable to this case. in r v brown, the court says section 33.1 of the criminal code violates sections 7 and 11(d) of the charter in a way that cannot be justified in a free and democratic society and is unconstitutional. in this case, mr. sullivan can be acquitted because he had proven that he was intoxicated to the point of automatism and the trial judge had found he was acting involuntarily. for his part, mr. chan can argue the automatism defence at his new trial, justice kasirer explained. the effect of a declaration of unconstitutionality by one trial court on another within the same province in this case, the supreme court also addressed the question of whether a declaration of unconstitutionality by a trial court is binding on other courts within the same province. the court said a decision is indeed binding on other trial courts, unless the facts are very different or if the court had no practical way of knowing the decision existed.
+supreme court of canada the supreme court rules that a foreign judgment against a caribbean country cannot be enforced in ontario. this case deals with the enforcement in canada of a foreign judgment. antigua and barbuda (antigua) is a country comprised of several islands in the caribbean. in 2007, antigua expropriated beachfront property owned by hmb holdings limited (hmb), a company incorporated in that country. in 2014, the court of final appeal for antigua ordered the government to compensate hmb for the expropriation. in 2016, hmb started legal action in british columbia to enforce the judgment in that province. at the time of the action, antigua had no office or premises in british columbia. however, for the purposes of its citizenship by investment program, antigua did have contracts with four authorized representatives with their own businesses, premises and employees in british columbia. antigua did not respond to the legal action, and a judgment by default was registered against it in british columbia's supreme court. shortly thereafter, hmb applied to have the british columbia judgment registered in ontario, so that it could be enforced there. ontario's reciprocal enforcement of judgments act (reja) allows a judgment from another province or territory to be registered for enforcement in ontario. antigua objected to hmb's application on the basis of two sections of the reja. section 3(b) states that an entity must be 'carrying on business' in the jurisdiction where the judgment was rendered. section 3(g) states that a judgment can only be registered in ontario if the opposing party would have a good defense if ever the original judgment were challenged. the ontario superior court of justice decided the british columbia judgment could not be registered in ontario. hmb appealed to the ontario court of appeal, which found that the british columbia judgment could not be registered, because of section 3(b) of the reja only. hmb then appealed to the supreme court of canada. the supreme court has sided with antigua. antigua was not 'carrying on business' in british columbia where the judgment was rendered, so the judgment could not be registered for enforcement in ontario. writing for a majority of the judges, chief justice wagner said section 3(b) of the reja bars hmb from registering the british columbia judgment in ontario, because antigua was not 'carrying on business' in british columbia. in light of this finding, the majority concluded that it was unnecessary to consider whether section 3(g) also bars hmb from registering the judgment under the reja. what does 'carrying on business' mean? the majority explained that to determine whether a company is carrying on business in a jurisdiction, the court must decide whether the company has some direct or indirect presence there, accompanied by a degree of business activity that is sustained for a period of time. whether or not a company is carrying on business is a question of fact. what is the purpose of the reja? the reja allows a person who has obtained a judgment in another jurisdiction to apply to register the judgment in ontario. a judgment registered under the reja is treated as if the judgment was originally issued by an ontario court. this law is considered an easy, economical and quick means of enforcing foreign judgments.
+supreme court of canada the supreme court upholds the conviction of a man arrested with a gun at a toronto nightclub, despite an error by the trial judge. this is a criminal case about whether the accused had a fair trial. mr. samaniego and another man (his co-accused) went one evening to a nightclub in toronto called las brisas. the security guard allowed the co-accused into the club, as they were good friends. however, the security guard did not allow mr. samaniego in because he had threatened him in the past. later in the evening, the police were called about a gun at las brisas. they arrested mr. samaniego and the co-accused for possession of a loaded restricted firearm. at trial, the crown called the security guard as a witness. the security guard testified that mr. samaniego threatened him when he did not allow him into the club and showed him a gun tucked into his waistband. the guard also testified that the co-accused came out of the club to resolve the situation, took the gun away from mr. samaniego and then went back in, but later came out again, dropped the gun in front of the guard and picked it back up. the crown's position was that both men had the gun at some point. in defence, mr. samaniego's lawyer argued that only the co-accused had possession of the gun and that the security guard was lying to protect the co-accused because he was his friend. during the trial, the judge made four rulings that limited the questions the security guard could be asked, including questions about who dropped the gun and who picked it up. the jury eventually convicted mr. samaniego. mr. samaniego appealed his conviction to the court of appeal. he argued the trial judge's rulings were wrong. a majority of the court of appeal disagreed, finding that the trial judge's rulings were trial management decisions and did not affect the fairness of the trial. mr. samaniego then appealed to the supreme court of canada. the supreme court has dismissed the appeal. the accused had a fair trial despite an error in one of the trial judge's rulings. writing for the majority, justice moldaver said one of the four rulings was wrong in part. it was the ruling that limited the questions mr. samaniego's lawyer could ask the security guard about who dropped the gun and who picked it up. justice moldaver said that ruling was both a trial management ruling and an evidentiary ruling. as he explained, judges can make rulings to ensure that trials are well run. these are known as 'trial management rulings'. 'evidentiary rulings' relate to the admissibility of evidence, requiring the judge to apply the rules of evidence. sometimes these two types of rulings overlap. during the preliminary inquiry, the security guard had told a different story at first about who dropped the gun and who picked it up. he later changed his story and repeated the same account he had told police and at the trial. mr. samaniego's lawyer was wanting to show the guard had said one thing at the preliminary inquiry and another at the trial. this was not true, and the trial management part of this ruling was to prevent that. as to the security guard saying different things during the preliminary inquiry, the trial judge should have allowed mr. samaniego's lawyer to question him about it. that evidentiary part of the ruling was wrong. the fact the guard eventually changed his story did not erase his first version of events. this was an inconsistency that the lawyer could ask him about. although the ruling was wrong in part, the error caused no harm to mr. samaniego. his lawyer was still able to challenge the security guard's credibility. as a result, the majority judges ruled mr. samaniego had a fair trial and they upheld his conviction.
+supreme court of canada current rules to decide where a civil trial should happen are flexible enough and don't need to be changed to deal with online defamation, the supreme court has said. it would be fairer and more efficient for israel to hear the defamation suit brought against an israeli newspaper by a canadian businessperson who owns an israeli soccer team. mitchell goldhar is a canadian businessman who owns a popular israeli soccer team. he had an apartment in israel and visited every few months. in 2011, the israeli newspaper haaretz published an article criticizing his management of the team. the article also mentioned his canadian business and management style generally. the article was published online and available for download in canada and in israel. mr. goldhar felt the article was untrue and unfair, and so sued haaretz for libel (written defamation, or publishing false information that hurt his reputation). about 200-300 people in canada and 70,000 people in israel read the article. this case involved online defamation in two different countries. when a legal dispute crosses borders, it may not be clear which courts should hear the case and which laws should apply. courts decide these issues by applying 'conflict of law' rules. just because someone sues in a court in one place, it doesn't mean that that court is allowed to hear the case (or meets the first legal test, known as 'jurisdiction simpliciter'). a court may also decide that, even though it is allowed to hear the case, it is clearly more appropriate for it to be heard somewhere else because it would be fairer and more efficient (in legal terms, the 'forum non conveniens' test). part of deciding the appropriate place for a case to be heard is deciding which laws should apply ('choice of law'). in part, conflict of laws rules are meant to prevent people from picking and choosing the place where the laws most benefit them (or most disadvantage their opponents). in this case, mr. goldhar sued in ontario, but haaretz said the lawsuit should be heard in israel. it filed a motion saying ontario courts did not have jurisdiction, but even if they did, it was more appropriate for israeli courts to hear the case. an ontario judge ruled in mr. goldhar's favour on the issue, and the court of appeal agreed. haaretz appealed to the supreme court. justice suzanne côté said that it was clearly more appropriate for the case to be heard in israel. even though there have been many changes in technology over the years, she said the current conflict of law rules are still flexible enough to deal with the challenges brought on by the increase in online publication. courts have to keep basic principles of stability and fairness in mind when applying the rules. she said that under the rules ontario courts had jurisdiction because the article was read in the province. (in law, defamation occurs when the untrue statement is 'published,' that is, when it is read or downloaded by even one person.) however, she said that it was clearly more appropriate for israeli courts to hear the case. in her view, a trial in israel would clearly be more convenient, efficient, and fair. mr. goldhar was well known in israel and his claim was not limited to his canadian reputation. also, since haaretz and most of its witnesses were based in israel, a trial in ontario would be unfair and inefficient for them. two judges agreed with justice côté . justice andromache karakatsanis, in separate reasons, agreed with justice côté that ontario courts should not hear mr. goldhar's case. she disagreed with justice côté on some specific points, but this did not affect her overall conclusion. justice rosalie silberman abella also agreed that it was more appropriate for mr. goldhar's lawsuit to be heard in israel. but she noted that the unique challenges posed by internet defamation, where all it takes for defamation to occur is one download, meant it was time to change the approach. she proposed a new approach to both jurisdiction simpliciter and the choice of law under forum non conveniens. this would see courts focus on the place where the person suing suffered the greatest harm to his or her reputation. it would better respond to the reality of the internet, emphasize the importance of reputation, and strike a better balance between freedom of expression and harm to reputation concerns. justice richard wagner (who was not yet chief justice when the appeal was heard) also agreed that israeli courts should hear the case. however, he said the forum non conveniens analysis should be tweaked. like justice abella, he said the choice of law in online defamation cases should be based on where the most harm to reputation occurred, not where the publication happened. (he did not think the rules about jurisdiction simpliciter needed to change, however.) using this new approach, he determined that israel was clearly a more appropriate place for the case to be heard than ontario. then-chief justice beverley mclachlin and justices michael moldaver and cl ment gascon, writing in dissent, said that ontario courts should hear the case. they agreed with justice côté that the current rules did not need to be changed to deal with online defamation. however, they thought that justice côté was not applying the rules of forum non conveniens properly in this case. these rules required that haaretz meet a high threshold to show that the case should be heard in israel. when the dissenting judges applied the rules to the facts, they found that israel was not a clearly more appropriate place to hear the case than ontario. they noted mr. goldhar was most concerned about his canadian reputation. they said ontario law should apply, and ontario courts should be the ones to apply it. this case was about how courts should deal with defamation claims in the internet era, where material is 'published' in more than one place. most judges said that the existing rules were working and would not change them, but came to different conclusions when they applied the rules. in the end, a majority of judges agreed it would be clearly more appropriate for mr. goldhar's lawsuit to be heard in israel. the supreme court did not decide on whether the haaretz article was actually defamatory; it only decided that israeli courts were in the best position to decide that.
+supreme court of canada a doctor's defamation lawsuit against a lawyer wasn't meant to silence anyone, and could go forward, the supreme court has ruled. freedom of expression is important to democracy, but it has limits. one limit is defamation. defamation law protects a person's reputation from unfair harm. ms. bent was a lawyer. she had been elected as president of the ontario trial lawyers association (otla), whose members represented people hurt in car accidents. dr. platnick was a doctor. he was hired by insurance companies to look at reports written by other medical professionals. he would write final reports giving medical opinions on how badly people were hurt. in 2014, ms. bent sent an email to the otla mailing list. she said that dr. platnick had misrepresented and changed other doctors' reports to make her clients' injuries look less serious. this meant the people who were hurt would get fewer insurance benefits. emails sent to the otla list were supposed to be confidential, but someone shared the message about dr. platnick. an insurance industry magazine published the full email in an article. dr. platnick said ms. bent was wrong. he explained that in one case he clearly made his own conclusions based on information from other doctors who didn't know ontario's accident benefits law. in another case, a doctor made a mistake in a report and later fixed it. dr. platnick asked ms. bent to apologize. she didn't, so he sued her and her law firm for defamation (that is, for harming his reputation). he asked for over $16 million in damages and lost income. ms. bent said this was a 'strategic lawsuit against public participation,' or 'slapp.' slapps are lawsuits used to stop people from speaking out on something that's important to the public. slapps aren't about genuine legal claims. they are about intimidating and silencing critics with the threat of costing them time and money to defend the lawsuit. like some other provinces, ontario has a law to stop slapps before they ever go to trial. the motion judge agreed with ms. bent that the defamation suit was a slapp and should be stopped. the court of appeal said it wasn't a slapp and could go forward. the majority of judges at the supreme court said that dr. platnick's lawsuit wasn't a slapp and should be allowed to continue. for his lawsuit to go forward, dr. platnick had to show three things. first, that he had a likely chance of winning. second, that ms. bent had no valid defence. third, he had to show that it was more important to the public that his lawsuit be allowed to go forward than it was to protect ms. bent's expression. the majority of judges said dr. platnick showed these three things. they said that the motion judge made mistakes applying the law on slapps, about defamation law, and about the evidence. they said dr. platnick had a likely chance of winning. this was because ms. bent's email was sent to 670 otla members and talked about dr. platnick by name. it was also because dr. platnick showed he lost about $600,000 in income because of the damage to his reputation. dr. platnick also showed at this stage that there was a basis in fact to find that ms. bent had no valid defence. the evidence showed that dr. platnick may not have changed the doctor's report. what ms. bent said wasn't necessarily true. her comments also weren't necessary because she didn't have to mention dr. platnick by name. even if ms. bent thought the email list was confidential, she talked to the magazine about it and let them publish it. the majority of judges said that the email was a personal attack and that ms. bent didn't confront dr. platnick about anything before she sent it. they said the harm to dr. platnick was more important to the public than protecting ms. bent's freedom of expression in this situation. the majority said that just because a court says a lawsuit isn't a slapp and can go forward doesn't mean it will succeed. this just means the person deserves to have their day in court. in a trial, the court will hear much more evidence and argument, and will have much more to base a decision on. 1704604 ontario ltd. v pointes protection association was another case about slapps. the court used its decision in that case and applied it to this one. the court heard the cases on the same day.
+supreme court of canada the supreme court rules that the council of canadians with disabilities can challenge british columbia's mental health laws. in this case, the supreme court was asked to decide if the council of canadians with disabilities (council) qualifies for public interest standing in a lawsuit. public interest standing allows individuals or organizations to bring a legal issue to court that is in the public interest even when they are not directly affected. this happens most often in cases concerning the canadian charter of rights and freedoms, where issues may broadly affect society as a whole. the council is a not-for-profit organization working for the rights of people living with disabilities in canada. in 2016, the council and two individuals challenged the constitutionality of british columbia's mental health legislation. the law allows doctors to administer psychiatric treatment to patients with mental disabilities without their consent or the consent of someone else on their behalf. according to the council and the two people who experienced such treatment without their consent, the law violates sections 7 and 15(1) of the charter. section 7 guarantees everyone the right to life, liberty and security of the person. section 15(1) says everyone has the right to be treated equally without discrimination, including on the basis of mental or physical disability. in 2017, the two individuals withdrew from the lawsuit, which left the council to continue the case on its own. the council sought public interest standing from british columbia's supreme court. the supreme court of canada had already established a test to qualify for public interest standing in a previous case. it consists of three requirements: (1) the case must raise a serious issue the court can decide; (2) the party raising the issue must have a genuine interest in the matter; (3) the lawsuit must be a reasonable and effective way to bring the issue to court. in this case, the trial judge said the council failed to meet this test because the two individuals and the facts of their experiences were no longer part of the lawsuit. the council appealed to british columbia's court of appeal, which said the judge was mistaken in finding the case had no factual context. the supreme court says the council has public interest standing and can continue the lawsuit. the council meets the test for public interest standing. writing for a unanimous supreme court, chief justice richard wagner said the council meets the three-part test for public interest standing. firstly, it raises an important issue: the charter rights of people with mental disabilities. secondly, the council has a genuine interest in the challenges faced by people with mental disabilities. thirdly, its claim is a reasonable and effective way to bring the matter before the courts. the chief justice said a court's decision to grant or deny public interest standing is discretionary. each factor in the three-part test must be duly considered and no factor takes priority over the others. the chief justice said this case does not turn on individual facts and the council could establish a sufficient factual context at trial. 'a strict requirement for a directly affected co-plaintiff would pose obstacles to access to justice', the chief justice wrote. the council raises important issues with the potential of affecting many people with mental health disabilities. the granting of public interest standing in this case 'will promote access to justice for a disadvantaged group who has historically faced serious barriers to bringing such litigation before the courts', the chief justice wrote.
+supreme court of canada the supreme court rules loblaw financial holdings inc. can benefit from a canadian tax exception involving a bank it owns in barbados. this is a tax case involving loblaw financial holdings inc. (loblaw financial), a canadian company. loblaw financial is owned by the loblaw group, which also owns grocery stores. in 1992, loblaw financial opened a bank in barbados called glenhuron bank limited (glenhuron). glenhuron did corporate banking, meaning it managed the money of various companies. between 1992 and 2000, both the loblaw group and loblaw financial invested money in glenhuron. in 2013, however, the loblaw group closed glenhuron. in its canadian tax returns for the years 2001 to 2005, 2008, and 2010, loblaw financial did not include the money made by glenhuron, claiming the revenue was exempt from the income tax act. the law says canadian companies must pay taxes on money made by their foreign affiliates, meaning companies they own abroad. that money is called 'foreign accrual property income' (fapi). however, a bank can get a tax exception if it was doing business mainly with companies that are not related to it. this is known as the 'arm's length requirement'. the minister of national revenue of canada denied the tax exception, so loblaw financial appealed to the tax court of canada. at tax court, the minister argued the exception did not apply and the tax court agreed. loblaw financial appealed that decision to the federal court of appeal, which sided with loblaw financial and said the exemption did in fact apply. the minister then turned to the supreme court of canada. the supreme court has sided with loblaw financial: the tax exception did apply, so loblaw financial did not have to pay taxes on the money made by glenhuron. the arm's length requirement was met. writing for the supreme court, justice côté explained 'the fapi regime is one of the most complicated statutory regimes in canadian law'. but she said the question in this appeal is simple. is a company 'doing business' with a foreign affiliate when it manages and gives money to it? she said the answer is no. when the arm's length requirement in the income tax act is read in its grammatical and ordinary sense, it is clear money and management to an affiliate is not included in 'doing business'. loblaw financial managed and gave money to glenhuron, but it was not doing business with it. rather, as a corporate bank, glenhuron was doing business with other companies not related to it. so, the arm's length requirement was met. as a result, the tax exception applied, and loblaw financial did not have to pay taxes on the money made by glenhuron for the years in question.
+supreme court of canada the supreme court finds that five toronto-area churchgoers have no legal basis to ask the courts to restore their voluntary church membership. five toronto-area churchgoers sued their former church, the ethiopian orthodox tewahedo church of canada st. mary cathedral, for having expelled them from the congregation. this followed the church having appointed them as part of a committee to investigate a movement within the congregation that was said to go against its beliefs. when the committee concluded its investigation, it made recommendations to the senior leadership of the church. however, the archbishop and other senior leaders of the church did not follow the committee's recommendations. the five churchgoers voiced their dissatisfaction, and in the end, the church decided to expel them. they took the church to court over this and asked to be reinstated. the superior court of ontario dismissed their case, stating that there was no legal issue requiring a trial. in so doing, the judge referred to a supreme court of canada case from 2018 highwood congregation of jehovah's witnesses (judicial committee) v wall which found that membership decisions of religious associations are not subject to review by a court if there is no underlying legal right at issue. in order for a court to review the internal procedures of a voluntary association like a church, there needs to be an actual legal right at issue, such as a contractual dispute to resolve between the parties. the court of appeal noted that the five churchgoers had completed membership forms to join the church and made monthly voluntary contributions and the church had a constitution and bylaws. on the basis of its assessment of this evidence, the court of appeal granted the appeal, finding that the bond between the church and the churchgoers was in fact a contractual one. the court of appeal ordered a trial to determine if the church had breached the contract. the church appealed that decision to the supreme court of canada. no contract between the church and the churchgoers canada's highest court said the court of appeal made an error in finding that a contract was formed between the church and the churchgoers. it noted that many informal agreements that people undertake do not necessarily result in a contract. an essential component for the formation of a contract was missing in this case, which was the intention to create legal rights and obligations towards one another. in this unanimous decision, the judges of the supreme court noted that in the pursuit of common goals, many voluntary associations have rules, and sometimes even a constitution, bylaws and a governing body to adopt and apply the rules. these are practical measures to help in the pursuit of shared objectives. but, they do not in and of themselves give rise to contractual relationships between the individuals who join. to illustrate their point, the judges said: 'the members of the local minor hockey league, or a group formed to oppose development of green spaces, or a bible study group, for example, do not enter into enforceable legal obligations just because they have joined a group with rules that members are expected to follow.' joining a congregation or voluntary association and making financial contributions does not in itself form a legally binding relationship.
+supreme court of canada the offence of influence peddling includes a promise to influence government to change the way it operates, the supreme court has ruled. the phrase 'any matter of business relating to the government' in the criminal code captures activities that go beyond current government operations, to include those that the government could facilitate. in an 8-1 decision, justice andromache karakatsanis dismissed bruce carson's appeal and upheld his conviction for influence peddling. bruce carson was formerly a senior advisor in the office of the prime minister. in 2010, about a year after leaving that position, he negotiated a deal with h2o professionals inc. where he promised to use his government contacts to help the company sell water treatment products to first nations. in exchange, the company agreed to pay mr. carson's then-girlfriend commissions on the sales. mr. carson promoted the company to first nations leaders, government officials, and cabinet ministers and their staff. indian and northern affairs canada (as it was called at the time, or inac for short) provided funding to first nations for water treatment systems like the ones sold by h2o. first nations themselves determined how the money would be spent. however, inac sometimes funded pilot projects for water treatment systems. mr. carson tried to convince inac to set up a project to purchase h2o products and pilot them in first nations communities. mr. carson was charged with a fraud against the government for selling his influence with the government. at trial, mr. carson admitted that he had influence over the government. he also admitted that he had demanded a benefit for his then-girlfriend in exchange for promising to help h2o sell its products. he denied, however, that he was selling his influence in connection with 'any matter of business relating to the government.' the trial judge acquitted mr. carson on the basis that the purchase of water treatment systems by first nations did not require government approval or action. that was because first nations, rather than government, would decide whether to purchase h2o's water treatment systems. the court of appeal disagreed, finding that the trial judge's interpretation was too narrow. it held that mr. carson's promise was, in fact, related to government business. it set aside his acquittal and found him guilty. the main question before the supreme court was what counts as a 'matter of business relating to the government.' the majority determined that this phrase should be interpreted broadly. business relates to the government if it depends on or could be facilitated by the government, even if it requires government to change its operations to promote a specific result. based on this, the majority held that mr. carson's promise was indeed in connection with 'any matter of business relating to the government.' this was because, while first nations did not need government approval to buy h2o products, inac could have encouraged such purchases. it could have changed its funding conditions to benefit the company, or created a pilot project promoting h2o products something mr. carson pushed for. for these reasons, the majority held that it was clear mr. carson believed that sales of h2o products to first nations could be facilitated by the government. in these circumstances, the majority considered that mr. carson undermined the appearance of government integrity and that he was guilty of influence peddling. writing in dissent, justice suzanne côté disagreed that the matter was connected to government business, and would have restored mr. carson's acquittal. in her view, 'a matter of business relating to the government' must be actually not just potentially related to the operational structures of government in place at the time of the offence. the trial judge had found that the federal government had given first nations complete independence to purchase water treatment systems of their own choosing. therefore, justice côté agreed with the trial judge that mr. carson's activities could not be said to be 'relating to the government.' in her view, the criminal code sought to protect government integrity by criminalizing agreements that would pose a risk of corruption if they were carried out successfully. she held that no such risk existed where the 'matter of business' in question did not actually relate to the government. this case dealt with the meaning and scope of 'any matter of business relating to the government' in section 121(1)(d) of the criminal code. the majority determined that business relates to the government if it depends on or could be facilitated by the government. a broad interpretation is necessary because real or apparent corruption may undermine the integrity and transparency that are crucial to democracy.
+supreme court of canada the supreme court rules that the sealing orders on the estate files of toronto couple barry and honey sherman were unjustified. today's decision means the media may access the files that establish who would inherit the money and assets of the couple who police say were murdered in december 2017. the sherman estate had sought sealing orders to block public access to estate files. it wanted the individuals concerned to be spared from further intrusion into their privacy and protected from what they allege was a risk to their safety. the sealing orders were initially granted, but challenged by a journalist and the toronto star newspaper. they said the sealing orders violated their constitutional rights of freedom of expression and freedom of the press, as well as the principle that courts should be open to the public. the ontario superior court of justice upheld the sealing orders. the journalist and the toronto star appealed the decision to the ontario court of appeal, which overturned that decision and set aside the sealing orders. the open court principle as a general rule, court proceedings are open and public, including estate files. this is known as the open court principle, and is protected by the constitutional right to freedom of expression. it is an essential feature of our democracy. the supreme court said there is a strong presumption in favour of open courts. it noted that this 'allows for public scrutiny which can be the source of inconvenience and even embarrassment to those who feel that their engagement in the justice system brings intrusion into their private lives. but this discomfort is not, as a general matter, enough to overturn the strong presumption that the public can attend hearings and that court files can be consulted and reported upon by the free press.' was the dignity or safety of the individuals at risk? the supreme court noted that privacy concerns can justify a sealing order if the dignity of the individuals in question is at risk. it said the sherman estate had to prove that the information in the court file is 'sufficiently sensitive such that it can be said to strike at the biographical core of the individual and, in the broader circumstances, that there is a serious risk that, without an exceptional order, the affected individual will suffer an affront to their dignity'. the court found that the information in the court fileswas not ofsuch a highly sensitive nature. it said the sherman estatefailed to show how lifting the sealing orders would affect the dignity of the individuals. it also said the safety of the individuals was not at serious risk. the supreme court concluded that the sealing orders were properly set aside by the court of appeal.
+supreme court of canada the supreme court rules that criminal code changes to the jury selection process are constitutional. this ruling has important implications for the jury selection process. the supreme court was asked to decide if changes to the criminal code were constitutional. the changes in question abolished the long-standing practice of allowing the crown (prosecution) and the accused to exclude a certain number of potential jurors without having to explain why. the rejection of a juror in this way was called a 'peremptory challenge'. the criminal code continues to allow 'challenges for cause', which allow the exclusion of potential jurors for specific reasons. the reason that parliament chose to abolish peremptory challenges was to address discrimination in the jury selection process. when the proposed changes were introduced to parliament, the minister of justice said that peremptory challenges give both the accused and the crown the ability to exclude jurors without reason, and in practice, 'this can and has led to their use in a discriminatory manner to ensure a jury of a particular composition.' the amendments to the law that eliminated peremptory challenges came into effect on september 19, 2019. that was also the day that jury selection began in the first degree murder trial of mr. pardeep singh chouhan. before his trial began, mr. chouhan raised his objection to the abolition of peremptory challenges, claiming it was unconstitutional, and even if it was constitutional, it should not apply to his trial. he claimed that the abolition of peremptory challenges violated his rights to an independent and impartial jury trial under sections 11(d) and 11(f) of the canadian charter of rights and freedoms (the charter). however, the trial judge decided that the abolition of peremptory challenges was constitutional. jury selection proceeded without peremptory challenges and mr. chouhan was eventually found guilty of first degree murder. mr. chouhan appealed to the ontario court of appeal. it found the amendments to the criminal code constitutional, but it ruled that some of those changes should not have applied to people who had a jury trial pending when the amendments came into force. the ontario court of appeal overturned mr. chouhan's conviction and ordered a new trial. the crown appealed to the supreme court of canada, arguing that peremptory challenges should be abolished for jury selections starting on or after september 19, 2019, and as such, mr. chouhan was not entitled to them. mr. chouhan also appealed to the supreme court, arguing as he did before the ontario court of appeal that the abolition of peremptory challenges was unconstitutional. the abolition of peremptory challenges is constitutional the majority of the judges of the supreme court said the constitutionality of the jury selection process must be considered as a whole. they reviewed the process as it stands now given the amendments made by parliament when it introduced the law that led to the abolition of peremptory challenges. the majority said the jury selection process continues to guarantee the right of each accused to a fair trial before an independent and impartial jury. they noted that protections begin long before the day on which the accused appears in court to select the jury. they also emphasized that provincial authorities are constantly at work, compiling a representative jury roll of eligible jurors, as part of a process that provides a fair opportunity for a broad cross‑section of society to serve as a juror. as such, the majority of the judges of the supreme court concluded that the abolition of peremptory challenges was constitutional. the amendments abolishing peremptory challenges should apply from september 19, 2019 the majority of the judges determined the amendments should apply to all jury selections starting on or after september 19, 2019. they explained that a procedural amendment that affects how a right is exercised could be applied immediately. as a result, the supreme court restored mr. chouhan's conviction.
+supreme court of canada judges can stop creditors from voting on how to settle insolvent companies' debts and can approve 'interim financing' from third parties to fund lawsuits, the supreme court has ruled. when a company doesn't have money to pay back its debts, it's 'insolvent.' if an insolvent company owes people (creditors) more than $5 million, it can get help through the companies' creditors arrangement act (ccaa). under the ccaa, it can work out agreements with its creditors to pay them back. a 'supervising judge' oversees this process. 9354-9186 qu bec inc., also known as bluberi, was insolvent. it owed a lot of money to callidus because callidus had given it a loan. the loan was 'secured,' meaning if bluberi didn't pay, callidus could take things bluberi owned. (a mortgage loan is a kind of secured loan.) this made callidus a 'secured creditor.' bluberi also had 'unsecured creditors' (like its employees). bluberi agreed to sell what it owned to callidus to pay its debt. the agreement said callidus would get bluberi's assets, and bluberi would only owe callidus $3 million. the agreement also said bluberi could keep the right to sue callidus. bluberi wanted to sue because it blamed callidus for its insolvency problems. this right to sue was the only thing of value that bluberi had left. bluberi still had other debts. it wanted to use money from the lawsuit against callidus to pay them. but callidus wanted to settle bluberi's debts in a different way. it put forward a 'plan of arrangement.' a plan of arrangement is a proposal about how to pay an insolvent company's creditors. a plan of arrangement needs to be approved by the company's creditors. under callidus's plan, some of bluberi's creditors would get everything they were owed, but some would only get part. in exchange, bluberi would have to give up its right to sue callidus. bluberi's unsecured creditors voted and rejected the plan. callidus could have tried to vote, but chose not to. bluberi then came up with a way to get the money it needed to sue callidus, through a 'third-party litigation funding agreement.' a company would provide the money in exchange for part of anything bluberi won from callidus. bluberi asked the supervising judge to approve this agreement as 'interim financing.' interim financing is money that helps a company make use of the assets it has left. but callidus said the agreement was a plan of arrangement, and that the creditors needed to vote on it. at the same time, callidus put forward a new plan, which was basically the same as its first one. callidus asked the supervising judge if it could vote on the new plan. if it could vote, its plan would pass. the supervising judge said callidus couldn't vote. he said it was acting with an 'improper purpose.' he said callidus chose not to try to vote the first time, and was now trying to override the result of that vote. he decided bluberi could go forward with its litigation funding agreement without a vote because the agreement was fair and wasn't a plan of arrangement. the court of appeal disagreed with the supervising judge. the supreme court unanimously said the supervising judge's decisions should stand. it said appeal courts should give a great deal of respect to a supervising judge's decisions, even if they would have made different ones. the supervising judge oversees the case from start to finish, knows the specific situation the best, and is in the best position to balance the many goals of the ccaa. one of the ccaa's goals is to help companies stay in business. another goal is to make sure creditors get back as much of the money they are owed as possible. in this case, the supreme court said the supervising judge balanced those goals properly. it said he was allowed to stop callidus from voting if it was acting with an improper purpose, which it was. he was also allowed to approve bluberi's litigation funding agreement as interim financing, if he thought it was appropriate. he was right to think that it was. the agreement was meant to help bluberi make use of the only asset it had left (its right to sue callidus). this case was decided 'from the bench' right after the hearing on january 23, 2020. when a case is decided from the bench, it means the judges tell the parties the outcome right away. in this case, the judges gave written reasons later to explain.
+supreme court of canada police weren't allowed to arrest someone for not holding an escalator handrail, the supreme court has ruled. in 2009, ms. kosoian went into a subway (metro) station on her way to downtown montreal. there was a sign by the escalator saying 'caution' and 'hold handrail,' with a picture of someone holding a handrail. while going down the escalator, ms. kosoian was looking in her bag for money to buy her ticket. she wasn't holding the handrail. constable camacho saw her and told her to hold the handrail. she didn't, because she didn't think she had to. when she got to the bottom, constable camacho stopped her. he asked her to follow him into a holding room so he could give her a ticket for her conduct. she refused, because she didn't think she had done anything wrong. constable camacho and another officer grabbed her and took her to the room. they asked her for identification. she said no, and asked to call a lawyer. constable camacho said ms. kosoian was under arrest. the officers handcuffed her and forced her to sit on a chair with her hands crossed behind her back. they searched her bag without permission. she was upset, but calmed down when the officers told her there was a surveillance camera in the room. they gave her two fines amounting to hundreds of dollars. the fines were for disobeying the picture and preventing the officers from doing their jobs. the next day, ms. kosoian's spouse filed a complaint with the soci t de transport de montr al (stm), which ran the subway. he asked for the surveillance tapes. the stm never responded, and the tapes were automatically erased after five days. ms. kosoian went to a doctor, who said she had post-traumatic stress and a sprained wrist from the incident. she was later found not guilty in municipal court and didn't have to pay the fines for the tickets. ms. kosoian thought the arrest was illegal, and sued. she said constable camacho, his employer (the city of laval), and the stm were all responsible. the trial judge and the majority at the court of appeal said constable camacho didn't act wrongly, based on the information and training he had. they said the arrest wasn't illegal. they said ms. kosoian caused her own problems by not cooperating. the supreme court unanimously disagreed. it said the picture was a warning. there was no law saying people had to hold the handrail. ms. kosoian didn't have to obey the picture. constable camacho was wrong to stop and search her for breaking a law that didn't exist. the city of laval was responsible as his employer. the stm was wrong for not training him properly. the stm taught police officers that pictures in subway stations showed legal rules. but some were just warnings. those that were legal rules and really had to be obeyed had clues. for example, one picture showed the amount of the fine with an image of a gavel to suggest a court of law (even though canadian judges don't use gavels). the handrail picture didn't have this. in any case, there was no government law or by-law saying people had to hold escalator handrails. the court said the stm training partly explained why constable camacho believed holding the handrail was a legal rule, and why he acted the way he did. but police officers still have to use their own judgment. before stopping ms. kosoian, constable camacho should have made sure he had a real legal basis for doing so. a reasonable police officer should have known that people didn't have to hold handrails. or at least they should have had some doubt. police officers are allowed to assume that rules they are asked to enforce may be enforced. they aren't allowed to assume a rule exists just because they are told so. the court said constable camacho and the stm were equally responsible for what happened. even if ms. kosoian didn't act in the best way, she had no legal obligation to hold the handrail. that meant she didn't have to cooperate and was allowed to walk away. the court said ms. kosoian should get $20,000 for the harm she suffered. this case was about civil liability for doing something wrong. in a free and democratic society, police officers can't interfere with people's freedoms except where the law says so. they have to know the law and act within it.
+supreme court of canada to be found guilty of breaching bail conditions, people have to know they are breaching them (or know they are seriously risking it), the supreme court has ruled. when someone is charged with a crime, they are presumed innocent until proven guilty in court. this is why someone who is arrested should normally be freed on bail before their trial. a court can put conditions on bail for limited reasons, including to protect the public. conditions are rules the person has to follow. breaching a bail condition is a crime. this is true even if the person isn't found guilty of the original charges. it's true even if the act that makes up the breach (for example, staying out too late) isn't a crime itself and no one gets hurt. mr. zora was charged with drug crimes and was out on bail. one of his bail conditions was that he had a curfew (he had to be home at certain times). another was that he had to come to the door within five minutes if someone came to check that he was home. two times, mr. zora didn't come to the door when police checked. he was charged for breaching his bail conditions. mr. zora said he was home both times but didn't hear the door. the trial judge found him guilty of not coming to the door. the summary conviction appeal judge and the court of appeal agreed. this case was about the nature of the crime of breaching a bail condition. to be guilty of a crime, a person must do something that is against the (criminal) law. this is called the 'actus reus,' which means 'guilty act' in latin. (in this case, the actus reus was not coming to the door.) but something has to make the person responsible for what they've done. this is called the 'mens rea,' which means 'guilty mind' in latin. for many crimes, a person is responsible if they intended, knew, or were aware of what might happen. this is 'subjective' mens rea. but for some crimes, a person can be responsible even if they don't mean to do anything wrong. this is 'objective' mens rea. that is, courts look at whether the accused person did something very different from what an ordinary, sensible person would have done in the same situation. courts across canada disagreed about the mens rea for breaching a bail condition. the supreme court of canada was unanimous. all the judges said the mens rea for breaching a bail condition was subjective. courts had to look at what the person actually knew or was aware might happen when deciding if they were guilty of a breach. criminal law is based on the principle that a morally innocent person shouldn't be punished. that's why courts assume the mens rea for crimes is subjective. the exception is if parliament says something different in the criminal code. parliament didn't say that here. the court said parliament meant for the mens rea for breaching bail conditions to be subjective. being found guilty of a breach can have serious effects on a person's life. they can go to jail for up to two years for each breach and are more likely to be denied bail in the future. this especially affects vulnerable and marginalized people who can get many charges because they can't follow their conditions. charging people for breaching conditions isn't the only way to prevent them from doing this. the crime exists to stop people who know they are breaching their conditions, or know they are risking it, and do so anyways. parliament meant for courts to look at the person's situation when the breach happened. the court also said how bail conditions should be set. normally there shouldn't be any conditions on bail. if there are conditions, there should be as few as possible. they have to be clear, necessary, and match the risk of the situation. courts should be careful not to set bail conditions that a person can't meet. in mr. zora's case, the court said there should be a new trial. the new trial would decide if he knew he was breaching his bail conditions, or creating a serious risk he would breach them. this was the first time the supreme court of canada looked at the mens rea for breach of bail conditions. the court recently looked at bail and pre-trial detention in r v myers.
+supreme court of canada the supreme court restores an alberta man's murder conviction after finding his statements to police were admissible as evidence at trial. in 2007, police in alberta questioned russell tessier in connection with the murder of his friend, whose body had been found in a ditch by a rural road near the town of carstairs. officers interviewed mr. tessier twice at the police station without placing him under arrest. they did not advise him that he could choose not to speak to police and that what he said could be used as evidence in court (this is known as a caution). in 2015, police charged mr. tessier with first degree murder after his dna was matched to a cigarette butt found near the crime scene. at trial, the crown tried to introduce evidence from the 2007 police interview with mr. tessier. under the confessions rule, statements with police are generally considered voluntary and therefore admissible as evidence if the person had a functioning mind at the time and made the statements without being threatened or tricked by police. mr. tessier claimed his statements were involuntary. he alleged that he had been psychologically detained by police, which triggered rights that apply to people who are detained or arrested. for instance, section 10(b) of the canadian charter of rights and freedoms provides that 'everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right'. the trial judge determined that mr. tessier had a functioning mind and made the statements without being threatened or tricked by police. the judge also determined that mr. tessier had not been detained when he spoke with police. as a result, the statements were voluntary and admissible as evidence at trial. the jury eventually convicted mr. tessier of first degree murder. mr. tessier appealed his conviction to alberta's court of appeal, arguing that his statements to police should not have been admitted at trial. the court of appeal found errors in the trial judge's analysis about whether the statements were voluntary and it ordered a new trial. the crown then appealed to the supreme court of canada. the supreme court has allowed the crown's appeal and restored mr. tessier's conviction for first degree murder. the statements were voluntary. writing for a majority of the judges, justice nicholas kasirer found that despite the absence of a caution, mr. tessier's 2007 statements to police were voluntary under the confessions rule and therefore admissible as evidence at trial. the majority wrote that mr. tessier had an operating mind at the time of his interviews, had exercised 'a free or meaningful choice' to speak with police and 'was not unfairly denied his right to silence'. given that there was a reasonable basis to consider mr. tessier a suspect at the time of questioning, the absence of a caution could mean his statements were involuntary. however, the crown discharged its burden by proving that the absence of a caution was without consequence and that the statements were, beyond a reasonable doubt and in view of the context as a whole, voluntary. the majority also rejected mr. tessier's arguments that he had been psychologically detained, which means the charter rights that apply to people detained or under arrest were not applicable.
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